Date:
20121116
Docket:
IMM-11693-12
Citation:
2012 FC 1333
Ottawa, Ontario,
November 16, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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DANIEL KUSMIEREK
BARTOSZ KUSMIEREK
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR ORDER
AND ORDER
[1]
The
Applicants are Roma, citizens of Poland who are brothers; one is 28 years old,
the other 25 years old. They have come to Canada due to discrimination based on
harassment, abuse and violence in Poland which was not denied in their specific
situation by the Refugee Protection Division of the Immigration and Refugee
Board, but rather, it was fully affirmed.
[2]
The
Polish government has put into place significant measures to protect all
segments of its population and has enforced provisions against hate crimes and
incitement of violence in respect of ethnic origin; as was specified by the
Refugee Protection Division, the Refugee Protection Division, nevertheless,
stated that, “notwithstanding the government enforcement efforts were sometimes
ineffective”; and, as was further stated by the Refugee Protection Division,
“the documentary evidence indicates that there were isolated incidents of
racially motivated violence, verbal and physical abuse directed at Roma…”.
Thus, although serious efforts have been made and even effectively put into
place, the documentary evidence before the Refugee Protection Division does
show that, in exceptional cases, “skinheads” and others have perpetrated acts
of serious violence wherein government intentions and efforts, although in
place, have not been able to arrest serious physical attacks in the vicinities
of schools, residences and places of employment.
[3]
The
Applicants have come to Court with an application for a stay of removal to be
effected this evening, November 16, 2012; an underlying application for leave
and judicial review has been submitted to the Court in respect of a denied
deferral by the removals officer, in addition, a humanitarian and compassionate
(H&C) grounds application has been put forward for consideration by the
Applicants.
[4]
Discrimination,
in specific cases, may, in fact, reach the level of persecution in the
recognition that inhuman treatment has been perpetrated to such a serious extent
on the lives of individuals, that, they, as a result, become victims of agents
of persecution rather than victims of acts of discrimination (not as yet under
the control of state-sponsored programs of enforcement). As stated, above, the
Refugee Protection Division has, itself, confirmed, in paragraph 15 of its
decision, that isolated incidents of racially motivated violence directed at
the Roma have taken place. This appears to be such a case.
[5]
It
is a case unto itself. It deserves a sober examination, thus, consideration,
due to a serious issue as well as potential irreparable harm and, on a balance
of convenience, favours the Applicants as per the tripartite conjunctive Toth v Canada
(Minister of Employment and Immigration) (1988), 86 NR 302 (FCA) decision
test.
[6]
In
addition, an H&C has been submitted as specified which, according to
uncontradicted evidence before this Court, demonstrates that the Applicants
have attempted to integrate themselves materially and socially into Canadian
society (by which to begin a new and promising life after an existence of
discrimination and physical harassment since early age);
[7]
As
was
previously stated by the undersigned in Csonka v
Canada (Minister of Citizenship and Immigration), 2012 FC 1056:
[68] Whether
the Applicants’ situation rises to the level of persecution depends on whether
their basic human rights are threatened “in a fundamental way” (Chan v
Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at para
70; Sadeghi-Pari v Canada (Minister of Citizenship and Immigration),
2004 FC 282). In determining this issue, the Board must consider the cumulative
effect of the events of persecution (Munderere v Canada (Minister of
Citizenship and Immigration), 2008 FCA 84).
[69] The
documentary evidence on the general country conditions of the Hungarian Roma
raises serious human rights concerns. Educational, employment, housing,
economic, and health barriers and anti-Roma violence described in the evidence
could show that the conditions of certain Roma in Hungary could rise to the
level of persecution.
…
The demarcation line between
discrimination and persecution in refugee law is thin.
In cases of this nature, the
distinction is made, as is specified by the jurisprudence of higher courts,
discussed and cited above.
In a more evolved world, one day,
a “kinder and more gentle” norm will, perhaps, prevail in evaporating the
distinction between the two; as did the notion of “separate but equal”,
gradually, evaporate (in certain state jurisdictions); however, international
law jurisprudential norms have not, as yet, evolved thereto, (in regard to the
fluidity of the demarcation between discrimination and persecution).
Should a child, or, for that
matter, an adult be discriminated against anywhere, for the same reason, he or
she may have been, or is, persecuted without recourse to refugee status
(because it has not attained the level of persecution)?
International norms, in respect
of refugee law, have, as yet, not decided that suffering discrimination
(without reaching the level defined as persecution) allows for the granting of
refugee status. In recognition of the hope that countries of origin should
be encouraged to do more to evolve the state of human rights within their own
jurisdictions, whether that occurs or not is for the future to envisage.
A judge’s mandate is but to
interpret the legislation and jurisprudence, generally, and, more particularly
of the higher courts. As the trajectory of the law and its interpretation
evolves through jurisprudence, as did the notion in constitutional law, as
stated by Lord Sankey, that of a “growing tree”, does take place in
constitutional law, so it may eventually in refugee law; however, that is not
where this branch of international law finds itself presently; thus, the
interpretation of the refugee convention in this regard has not attained that
stage, which it may, as yet, but as of today, the world is still distant from
it. (It must be acknowledged that a continuous amelioration of human rights is
the responsibility of refugee-producing countries; otherwise, the onus would
solely be on refugee-receiving countries, rather than that of refugee-producing
countries, to ameliorate their human rights records, as part of the community
of nations, if, in fact, international legislative norms are to lead to an
evolution of the human condition.)
Therefore, this Court has no
option but to differentiate and to delineate between discrimination and
persecution as have the higher courts in their jurisprudence. The higher courts
have recognized the state of the civilized world in which the higher courts
find themselves, in that, reality and the ideal have not, as yet, met in this
regard.
[Emphasis
in original].
[8]
In
the Csonka decision, it appears that, in certain cases, the demarcation
line between discrimination and persecution is thin and, as a result, the call
must be made that discrimination may have, in fact, turned into persecution due
to serious physical assaults in such exceptional cases where, due to on-going
physical harassment since early age, the situation becomes intolerable to the
victims (thus, that which the Handbook on Procedures and Criteria for
Determining Refugee Status by the Office of the United Nations High
Commissioner for Refugees termed as overriding reasons wherein a change in
country enforcement measures may not always produce a complete change in the
attitude of a population, nor, in the view of passed experiences in the mind of
the refugee; thus, it may necessitate a different response from decision-makers
in respect of that which no longer can be considered to be discrimination but
rather becomes persecution).
[9]
Therefore,
a stay of removal is granted pending final disposition of the outstanding
application for leave and judicial review.
ORDER
THIS
COURT ORDERS that the Applicants’ stay of removal be
granted pending final disposition of the outstanding application for leave and
judicial review.
Obiter
It is recommended,
exceptionally, by the undersigned, that an H&C consideration take place,
prior to removal if removal is to be effected in regard to the Applicants, due
to their specific circumstances; although, it is fully recognized by this Court
that it is not in the purview of its discretion but rather it is in the purview
of the discretion of the appropriate authority to decide the time and the
substance of the H&C.
“Michel M.J. Shore”
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