Date:
20121102
Docket:
IMM-1201-12
Citation:
2012 FC 1284
Ottawa, Ontario,
November 2, 2012
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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JAROMIR FERKO
RUZENA FERKOVA
MARIE FERKOVA
TOMAS FERKO
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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
January 4, 2012, 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, the Act). For
the reasons that follow the application is allowed.
Background
[2]
Jaromir
Ferko (the applicant) and his family are Roma citizens of the Czech Republic who fear persecution in their home country. They were the victims of a number of
violent attacks by skinheads and neo-Nazi groups in the Czech Republic between 2000 and 2009, including threatening and racist graffiti on their home, damage
to their home and personal assaults. Despite having moved on several occasions
for their safety, the attacks continued. The applicant also described his
experience of discrimination throughout his life.
[3]
Four
specific incidents, among many, were highlighted by the applicant. One incident
occurred sometime between 2000-2003, when the applicant and his brother were
confronted by skinheads in a restaurant, kicked and beaten with chains. The
skinheads followed them home, kicked down the door and beat the applicant, his
wife and his young children. The applicant reported the incident to the police but
no arrests were made.
[4]
The
applicant’s children were repeatedly subjected to bullying and physical abuse
at school. In one incident, skinheads followed them home, threw rocks at their
house, smashed a window and threatened to burn down the house. The applicant
again reported the incident to the police.
[5]
The
family home was set on fire in August 2004. Firemen and police attended at the
scene and determined that the fire had been caused by a gas bottle that had
been thrown on the roof. The police initially blamed the applicant for the
incident, but neighbours corroborated his story that skinheads had been seen
outside the building before the fire.
[6]
In
another incident, following their move to another town, the applicant and his
family were attacked by a group of skinheads at the train station. His wife was
punched in the face, his children were kicked, and the applicant lost two
teeth. The applicant again reported the assaults to the police.
[7]
In
April 2009, the applicant and his family fled to Canada and claimed refugee
protection.
The
Decision Under Review
[8]
The
Board found that the applicant was not a Convention refugee under section 96 of
the IRPA as he does not have a well-founded fear of persecution in the Czech Republic on any of the five Convention grounds. The Board also found that the
applicant was not a person in need of protection under section 97 as his
removal to the Czech Republic would not subject him personally to a risk to
life or to a risk of cruel and unusual treatment or punishment, or to a danger
of torture.
[9]
The
claims of the spouse and two children were dependent on the applicant’s claim
and were, therefore, also rejected.
[10]
At
paragraph 5 of the decision, the Board set out its considerations in examining
the applicant’s claim for protection as follows:
[…] I considered the issue of whether the
claimant’s fear is objectively reasonable. In this regard, I considered whether
or not there is adequate state protection in the Czech Republic, whether or not
the claimant took all reasonable steps to avail himself of that protection, and
whether he has provided clear and convincing evidence of the state’s inability
to protect him.
[11]
The
Board reviewed all the incidents described by the applicant and his
interactions with the police. The Board concluded with respect to every
incident that there was no persuasive evidence to suggest that the applicant
followed up with the police after his initial reports.
[12]
With
respect to the incident in the applicant’s home where he and his wife were
beaten and the police attended, the Board acknowledged that the fear and
apprehension about leaving his home after the attack were understandable and
reasonable in the circumstances, but concluded that this did not constitute a
legitimate or sufficient justification or excuse for his failure to follow up
on the status of the police investigation.
[13]
With
respect to the attack on the family at the train station, the Board found that
the applicant’s failure to follow up with the police was not objectively
justified by the fact that he and members of his family were overcome by fear
following the attack. The Board found it unreasonable for him to have taken no
further steps to pursue the complaint.
[14]
The
Board acknowledged that the applicant lived in fear and the impact it had upon
him, yet reached the same conclusion with respect to each incident; that his failure
to follow up with the police was not objectively justified.
[15]
The
Board concluded that the applicant did not take all reasonable steps to seek
out the assistance and protection of law enforcement authorities in the Czech Republic before coming to Canada.
[16]
The
Board noted the extensive case law which sets out the applicable principles
governing state protection. The Board also considered the documentary evidence
regarding the Czech Republic, including legislation prohibiting discrimination,
as well as enforcement efforts, and available statistics regarding
investigations of police misconduct and prosecutions for corruption and abuse
of power by the police. The Board acknowledged that Roma face high levels of
poverty, unemployment and illiteracy as well as discrimination in education,
employment and housing and that societal prejudice does manifest itself in
violence. The Board also noted increased efforts by the authorities to address
racial violence including an increased police presence and prosecutions and
convictions for racially motivated attacks. The Board concluded that the
preponderance of the documentary evidence indicates that the government of the Czech Republic is making serious efforts to provide protection to the Roma as victims of
hate crimes and to address discrimination more generally.
[17]
The
Board also reviewed a March 2010 Response to Information Request which Counsel
for the applicant relied on to show that many of the measures taken by the
government were ineffective. The Board agreed that the document indicated that
the Roma Inclusion Project has not been effectively implemented in all
locations, but overall, the Government was making serious efforts to combat
discrimination of the Roma. The Board also acknowledged that the documentary
evidence showed that Roma continue to face discrimination in racism, housing,
employment and education, but found that this did not establish a pattern of
conduct by the government that amounted to systemic or sustained persecution
of the Roma. The Board again found that the preponderance of evidence
demonstrates that the authorities in the Czech Republic are making serious
efforts to combat extremist violence and attacks perpetrated against the Roma.
[18]
The
Board referred to the “serious efforts” being made several times in its
decision.
[19]
It
should also be noted that the Board mistakenly referred to the conditions in Hungary rather than in the Czech Republic in certain passages of its decision. For example, the
Board refers to the practices of “the Hungarian police” (para. 19) and the
efforts made by “the Hungarian government” (para. 27).
[20]
In
conclusion, the Board found that the applicant had failed to rebut the
presumption of state protection with clear and convincing evidence.
[21]
The
section 97 claim was rejected for the same reasons; the applicant was not a
person in need of protection.
The
Issues in this Case
[22]
Although
the applicant asserts that the Board made veiled credibility findings against
him which influenced the state protection analysis, the key issue is whether
the Board’s state protection finding was reasonable and, more specifically,
whether its finding that the applicant had not rebutted the presumption of
state protection was reasonable.
[23]
The
Board’s mistaken references to Hungary, rather than the Czech Republic, must also be considered in assessing whether its analysis of state protection was
reasonable.
Standard of Review
[24]
The
applicable standard of review is reasonableness. The
role of the court on judicial review where the standard of reasonableness
applies is not to substitute any decision it would have made but, rather, to
determine whether the Board’s decision “falls within ‘a range of possible,
acceptable outcomes which are defensible in respect of the facts and law’ (Dunsmuir
v New Brunswick, 2008 SCC 9 [Dunsmuir] at
para. 47). There might be more than one reasonable outcome. However, as long as
the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome.”: Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12,[2009] 1SCR 339, at
para. 59.
Argument and Analysis
Credibility
[25]
The
applicant submits that it was not open to the Board to prefer the documentary
evidence to the sworn testimony of the applicant in the absence of an adverse
credibility finding. The applicant submits that if the Board rejected the
applicant’s testimony, it should have made clear credibility findings and provided
reasons and that its failure to do so is a reviewable error.
[26]
The
respondent submits that the Board did not dispute the attacks or the veracity
of the applicants’ testimony. While the applicant may have had a sincere belief
that the state would not provide protection, a subjective reluctance to follow
up with the police was not sufficient to rebut the presumption of state
protection.
[27]
The
respondent further submits that credibility findings should be distinguished
from conclusions based on a lack of evidence: Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067, 74 Imm LR (3d) 306 [Ferguson ].
[28]
In
Ferguson, Justice Zinn provided a useful analysis of the distinction
between sufficiency of evidence and credibility findings. It is possible for an
officer (i.e. the decision-maker) to neither believe nor disbelieve an
applicant, but simply remain unconvinced on a balance of probabilities (para.
34). The fact that an applicant has not discharged the burden of proof does
not mean that they lacked credibility; rather, it simply means that they have
provided insufficient evidence to support the proposition advanced on a balance
of probabilities.
[29]
In
my view, this reflects the circumstances of the present case. The Board did not
question the applicant’s credibility. The Board acknowledged the serious nature
of the attacks and the fear that resulted. The Board also accepted that the
applicant had reported the incidents to the police and that the police
attended, but that neither the police nor the applicant followed up on the
status of the investigations. These facts are not disputed by the parties. The
Board accepted the applicant’s testimony, but concluded that he had not
rebutted the presumption of state protection.
State
Protection
[30]
As
a preliminary matter, the Board’s mistaken references to Hungary must be addressed.
[31]
The
applicant argues that the Board’s erroneous references to Hungary – instead of
to the Czech Republic – constitute “sloppy treatment of the evidence” and
suggests that the Board used pre-written paragraphs from other decisions
involving Roma, thereby failing to individually assess the applicant’s case.
[32]
The
respondent submits that while the Board did make an error, the reasons, when
read as a whole, show that the Board conducted a proper analysis of the Czech Republic and not Hungary.
[33]
I
agree that when the decision is read as a whole, it is clear that the Board
considered the country conditions in the Czech Republic. It is understandable
that the applicants would regard this error as significant to the
reasonableness of the Board’s analysis and it could reinforce a perception that
the Board views all state protection for Roma in Eastern Europe in the same
manner. The Board, however, is familiar with the documentary evidence with
respect to both the Czech Republic and Hungary as well as other countries and,
regardless of whether text was copied into the decision, the key issue is
whether the Board reasonably determined that state protection was available to
the applicants in the Czech Republic.
[34]
With
respect to the main issue of state protection, the applicant submits that the
lack of action by the police following the incidents establishes that there is
inadequate state protection for Roma in the Czech Republic. As such, the
applicant could not reasonably be expected to follow up with the police and was
not required to make repeated attempts to access state protection: Codogan v
Canada (Minister of Citizenship and Immigration), 2006 FC 739, 293 FTR 101
at para. 30 [Codogan]; Francis v Canada (Minister of Citizenship and
Immigration), 2011 FC 1095, 397 FTR 162.
[35]
The
applicant submits that a person should not be expected to seek state protection
if the evidence shows that no such protection is available: Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, 103 DLR (4th) 1 [Ward].
[36]
The
applicant submits that a contextual analysis of state protection is required: Codogan,
above, at para. 32. Such a contextual analysis would take into account the
applicant’s state of fear and the experience of the applicant and his family as
a vulnerable minority living in a hostile environment.
[37]
The
applicant also submits that the Board applied the wrong test for state
protection by finding that the Czech Republic was making “serious efforts” to
combat violence and discrimination against the Roma rather than assessing the “the
actual effectiveness of the protection”: Lopez v Canada (Minister of Citizenship
and Immigration), 2010 FC 1176, [2010] FCJ 1589 at para. 8. Moreover, the
existence of legislation and procedures alone do not amount to adequate or
effective state protection: TMC v Canada (Minister of Citizenship and
Immigration), 2004 FC 1670, [2004] FCJ No 2026. The Board had an obligation
to go beyond the documentary evidence and consider the applicant’s specific
situation: Codogan, above, at para. 32.
[38]
The
applicant also submits that although the Board acknowledged some contradictory
evidence about the failure of the police to respond to incidents involving the
Roma, the Board did not clearly provide the reasons for rejecting it. The
applicant contends that this constitutes a reviewable error: Bautista v Canada (Minister of Citizenship and Immigration), 2010 FC 126, [2010] FCJ No 153 at
para. 11.
[39]
The
respondent submits that the Board’s state protection finding was reasonable.
The Board undertook an extensive review of the documentary evidence,
considering legislation, programs and impact of measures put in place to
protect the Roma in the Czech Republic. The respondent noted that local failures
are not evidence of inadequate state protection: Cueto v Canada (Minister of Citizenship and Immigration), 2009 FC 805, 347 FTR 151. Although no arrests
were made, there was no persuasive evidence that the police failed to take
action or to carry out proper investigations. The respondent submits that it
was unreasonable for the applicant not to follow up with the police after such
violent incidents and that he failed to take “all reasonable steps to pursue
protection.”
[40]
The
fact that the Board did not refer to all of the evidence is not a reviewable
error: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 16.
[41]
The
respondent submits that the Board considered all the documentary evidence,
including the contradictory reports, and acknowledged the discrimination faced
by Roma but concluded that it did not rebut the presumption of state
protection.
[42]
As
noted above, the key issue is whether the applicant rebutted the presumption of
state protection. The Board was aware of the principles from the jurisprudence
and sought to apply them to the applicant’s claim.
[43]
As
a starting point, there is a presumption that a state is capable of protecting
its citizens. The presumption is only rebutted by clear and convincing
evidence that the state protection is inadequate or non existent: Carrillo v
Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2009] 4
FCR 636 [Carrillo]. The evidence must be reliable and have probative
value; claimants “must adduce relevant, reliable and convincing evidence which
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate”: Carrillo, above, at para 30.
[44]
The
test is not ‘perfect’ state protection, but adequate state protection. Still,
mere willingness to protect is insufficient; state protection must be effective
to a certain degree: Bledy v Canada (Minister of Citizenship and
Immigration), 2011 FC 210, 97 Imm LR (3d) 243 at para. 47.
[45]
The
incapacity of the state to provide protection is an essential consideration in
determining whether the applicant’s fear is well-founded – i.e. in determining
whether he has objective grounds for being unwilling to seek the protection of
the state.
[46]
In
my view, the Board’s decision was unreasonable in concluding that the applicant
had failed to take all reasonable steps to avail himself of state protection
and that he had failed to rebut the presumption of state protection.
[47]
To
establish fear of persecution, the applicant must subjectively fear persecution
and that fear must be well-founded, in an objective sense (see Ward,
above, at para. 54). Clearly the applicant had a subjective fear of
persecution, which the Board repeatedly acknowledged.
[48]
The
Board’s finding that such fear was understandable and reasonable in the
circumstances, but that it did not constitute a legitimate or sufficient
justification or excuse for his failure to follow up with the police - in other
words, that it was not objectively well-founded - is not logical. It is not possible
to reconcile a finding that the fear was understandable and reasonable with a
finding that it did not justify the applicant’s failure to follow up with the
police and do more to seek state protection, given the circumstances of the applicant.
[49]
The
applicant reported every incident of violence to the police, yet he and his
family continued to be victims of violence in each community they moved to.
The Board accepted that the applicant’s reports to the police did not result in
any suspect being apprehended. Even if they had, this would not necessarily
have resulted in any future protection for the applicant’s family since nothing
suggests that they were repeatedly targeted by the same individual(s). Rather,
the applicant and his family were the victims of a broader pattern of violence
by ‘skin heads’ against the Roma. It is, therefore, not apparent what the
purpose would be for the applicant to continue to request status reports from
the police about the incidents reported. It is not apparent how that would have
increased state protection to him and his family.
[50]
Although
the Board correctly points out that the police cannot be expected to arrest
every perpetrator in every investigation, it was unreasonable, in the specific
circumstances of this case, for the Board to base its state protection finding
on the applicant’s failure to follow up with the police on the status of the
investigations. It should also be noted that despite the fact that there
appeared to be no arrests made in any of the incidents, and despite his
continuing fear, the applicant sought the assistance of the police after each
incident.
[51]
Apart
from the Board’s reference that “it is the obligation of members of the public
to hold the police accountable by following up with the police once they have
lodged a complaint with them”, the Board provided no further rationale why the
applicant was expected to do more.
[52]
Moreover,
this comment raises the question how the applicant’s further inquiries to the
police would lead to more police accountability. The Board repeatedly cites the
“serious efforts” being made by the Czech authorities, including the police,
and points to investigations and prosecutions as well as other government
initiatives that the Board relies upon to find that there is adequate state
protection. There is no suggestion by the Board that the police need to be held
more accountable, except for its expectation that the applicant should have
done so by making repeated inquiries of the police. If state protection is adequate,
victims like the applicant should not need to bear the burden of holding the
police more accountable.
[53]
With
respect to the adequacy of state protection, this Court has applied the same test
which has led to different results in different cases due to different
circumstances. Each case must be decided on its own facts. The applicant and
respondent both pointed to cases suggesting that adequate state protection
ranges from serious efforts to operational or “on the ground” effectiveness.
[54]
The
Board analysed the documentary evidence extensively and noted repeatedly that
the Czech Republic was making “serious efforts”. However, for the applicant and
his family, the serious efforts did not result in an improvement to their
situation as they continued to be victimised in the communities they lived in.
[55]
In
Bledy, above, Justice Andre Scott assessed whether the state protection
analysis was reasonable and noted that, in that case, the Board had not
considered documentary evidence contradictory to that showing “serious efforts”
by the Czech Republic. Justice Scott reiterated that willingness and serious
efforts are not enough:
[46] The Board focused the bulk of its state protection
analysis on considering the country conditions evidence set out in the IRB issue
paper entitled, “Czech Republic: Fact-finding Mission Report on State
Protection” (June 2009). As outlined above, the Board pointed to legislative
prohibitions on discrimination as well as measures implemented to reform the
country’s police force and increase access to protection for the Romani
population. The Board concluded that the, “preponderance of the documentary
evidence” indicated that the Czech government was making “very serious efforts”
to protect the Roma.
[47] However, as this Court has pointed out on a number of
occasions, the mere willingness of a state to ensure the protection of its
citizens is not sufficient in itself to establish its ability. Protection must
have a certain degree of effectiveness: see Burgos v Canada (Minister of Citizenship and Immigration), 2006 FC 1537, 160 ACWS (3d) 696; Soto v Canada (Minister of Citizenship and Immigration), 2010 FC 1183 at para 32. As such, an
applicant can rebut the presumption of state protection by demonstrating either
that a state is unwilling, or that a state is unable to provide adequate
protection: see Cosgun v Canada (Minister of Citizenship and
Immigration), 2010 FC 400 at para 52.
[56]
In
Koky v Canada (Minister of Citizenship and Immigration), 2011 FC 1407,
[2011] FCJ No 1715 [Koky], Justice Russell reviewed a decision of the
Board refusing claims under sections 96 and 97 for Roma applicants who
described similar incidents of violence. In that case, as in this one, the
Board noted the serious efforts being made by the authorities in the Czech Republic.
Justice Russell reviewed a series of cases all elaborating on the notion of
adequate state protection and concluding that serious efforts do not
necessarily mean that there is adequate state protection. The Board is required
to assess whether, in practice, the serious efforts have resulted in adequate
protection for the applicants:
[60] In my view, then, the RPD has committed an error of law
in its conclusion that “serious efforts” equates to adequate state protection.
This error renders its conclusions on adequate state protection for the
Applicants unreasonable.
[61] It is trite law since the Federal Court of Appeal’s
decision in Carillo, above, that the appropriate test for state
protection is not effectiveness per se. Rather, the test is whether
there exists adequate state protection from the alleged risks. State protection
need not be perfect; it need only be adequate. As was stated plainly by the
Federal Court of Appeal in Carillo at paragraph 30,
[…] a claimant seeking to rebut the presumption
of state protection must adduce relevant, reliable
and convincing evidence which satisfies the trier
of fact on a balance of probabilities that the state
protection is inadequate.
[62] It is well established law that while state
protection need not be perfect, states must be both willing and able to protect
their citizens (see Ward, above, at paragraphs 55-57 and Villafranca,
above, at paragraph 7).
[57]
I
also agree with the applicants that a contextual analysis is needed. The
adequacy of state protection must take into consideration the circumstances of
the applicant. As noted above, there was no doubt about the impact of fear on
the applicant and there was no doubt about the violence suffered by him and his
family over many years or the fact that he had reported to the police on each
occurrence.
[58]
In
Codogan, above, Justice Teitlebaum allowed judicial review with respect
to a decision based solely on state protection for a victim of domestic abuse
(which also involved the application of the gender guidelines) and noted, at
para. 32:
The RPD did not consider the Applicant's particular fear in this
case. […]
In my view, the RPD could not simply refer to the documentary
evidence and determine that state protection would be available to the applicant.
This approach fails to consider the particular circumstances of the individual.
In my opinion, the RPD should have examined the Applicant's situation, and,
with the assistance of the documentary evidence, determined whether state
protection could be available for the Applicant's situation of having an
abusive ex-boyfriend still seeking her. The panel's failure to consider the Applicant's
context in my view amounts to a reviewable error.
[59]
Considering
the particular circumstances, the applicant’s failure or reluctance to
follow-up with the police should not be “objectively unreasonable”, as stated
by the Board, given that his fear following the traumatic experiences is
accepted by the Board and credibility is not an issue. The applicant was not
“subjectively reluctant to engage the state”; he approached the police after
every single incident and filed a report.
[60]
While
there is no expectation that filing a police report would lead to an arrest and
convictions, it was unreasonable for the Board to dwell on the lack of
follow-up by the applicant given that the applicant had consistently reported
to the police.
[61]
The attacks
against the applicant and his family were not isolated or random events; they
were racially motivated and occurred over the course of many years, in
different settings and in different cities. The family was attacked in their
home, on the streets and at a train station. They moved to other towns, but still
experienced violence. They filed reports to the police following each incident.
The cumulative effect of these circumstances renders the Board’s conclusion
regarding the adequacy of state protection for the applicant unreasonable.
Conclusion
[62]
For
the reasons noted above, the Board’s decision that state protection was
adequate failed to address the circumstances and experience of the applicant
and his family. The Board committed a reviewable error in equating the serious
efforts being made with adequacy of state protection for the applicant given
his circumstances and experience. The finding that the applicant failed to
rebut the presumption of state protection is not reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a differently
constituted panel of the Immigration and Refugee Board.
2. There is no question for
certification.
"Catherine M.
Kane"
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