Date: 20110222
Docket: IMM-3354-10
Citation: 2011 FC 210
Ottawa, Ontario, February 22,
2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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JOSEF BLEDY
HELENA SAMKOVA
ADAM FRANTISEK BLEDY
JENIFER BLEDA
JOSEF BLEDY (JR)
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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]
This
is an application, pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], for judicial review of a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(Board), dated May 25, 2010, refusing the applicants’ claim for refugee
protection after determining that they were neither convention refugees nor persons
in need of protection.
[2]
For
the reasons discussed below, I am allowing this application for judicial
review.
Background
[3]
Mr. Josef Bledy (the principal applicant)
was born May 5, 1983 and is a citizen of the Czech Republic.
He and his family (together, the applicants) – his common-law spouse, Helena
Samkova (born October 10, 1983), his son, Josef Bledy Jr. (born June 10, 2002),
his daughter, Jenifer Bledy (born February 3, 2004), and his son, Adam
Frantisek Bledy (born September 24, 2008) – arrived in Canada on December 17,
2009 and claimed refugee protection on December 19, 2009.
[4]
The applicants claimed protection as convention
refugees, alleging a well-founded fear of persecution in the Czech
Republic based on their Roma ethnicity. Failing a successful claim under
section 96 of the IRPA, the applicants also claimed protection under subsection
97(1) of the IRPA, based on their fear of being victims of further violence in
the Czech Republic, as
well as based on their assertion that they, as Romani citizens, would receive
inadequate healthcare if returned to the Czech
Republic.
[5]
In the principal applicant’s Personal
Information Form (PIF), he alleged the following facts in support of his
family’s claim:
(a)
In kindergarten, the principal applicant
had been verbally harassed for being a Roma child. He defended himself
physically and was expelled.
(b)
Both the principal applicant and his spouse
received their education via “special” schools for children with mental
disabilities.
(c)
The Czech students at the regular school
would swear, demean and attack both the principal applicant and his spouse
because they were Roma. They complained to the teachers and director, but no
action was taken.
(d)
As a child, the principal applicant was
prevented from participating in sports (hockey, soccer, karate) organized by
his home municipality, because he attended a “special” school.
(e)
Josef Jr. was also placed in a “special”
school despite his parents’ attempts to register him in a regular school and despite
the fact that his parents believed he had performed well on his entrance exams.
(f)
The principal applicant was prevented from
participating in a bricklayer apprenticeship due to insufficient education.
Although he had been registered at the employment office since he was 15 years
old, he had received only limited employment because of his poor schooling and
his ethnicity.
(g)
In August of 2005, while in Pisek to visit
his aunt, the principal applicant and his cousin were attacked by 12 skinheads
who yelled various racial slurs. They were kicked until the cousin had a
concussion. The aunt called the police, but the police laughed at them and
accused them of provoking the attack.
(h)
In January of 2006, while at a disco in
Protivin, the principal applicant and two cousins were attacked by a group of
30-40 skinheads. One cousin was stabbed, while the principal applicant and the
other cousin had concussions and were bleeding. The other patrons at the disco
did nothing to intervene. The police were called, but they accused the boys of
provoking the skinheads. The police did not write up a report.
(i)
In August of 2007, the principal
applicant’s mother-in-law was raped and beaten by a man who swore at her using
various racial slurs. She was left in the woods unconscious. The police laughed
at her and suggested she made it up or that it was her fault. Despite having
evidence (a description of the car and semen samples), and despite the
applicants checking with the police on multiple occasions, the police never found
the assailant.
(j)
In December of 2007, the applicants were
visiting their parents in Vimperk for Christmas. On Christmas day, their house
was set on fire, but it was saved by firefighters. The next day, the basement
was set on fire, it was again extinguished. On December 28th, the
roof was set on fire and on the 29th, the whole roof burned down along with
part of the house. Although the applicants did not see the attackers, they
heard on the news that it was a “racist attack”. The applicants’ parents were given
alternate temporary accommodations by the city. However, those alternate
accommodations had no water, toilet, or bathroom.
(k)
In November of 2008, the principal
applicant, his spouse and her four cousins, were attacked by 6 skinheads with
baseball bats while at a local pub celebrating the christening of Adam. Before
fleeing the scene, the skinheads let off 5 pistol rounds as a warning. The
police called an ambulance and left in pursuit of the attackers. Although the
police took statements from the principal applicant and his family, the
applicants never heard anything further about the investigation.
[6]
At the hearing before the Board, the
principal applicant added the following additional allegations in support of
his family’s claim:
(a)
In 1992, when he was a young boy, his
cousin was attacked and killed by skinheads. Counsel for the applicants
provided the Board with a video recording of a news report regarding the
incident.
(b)
The principal applicant’s eldest son was
attacked on his first day of school by a group of 6 Czech boys. His son came
home with a black eye, but the teacher said that his son had started the fight.
(c)
The principal applicant’s brother-in-law,
Stefan, was attacked in the Czech Republic only three days after being returned
home from Canada following a
denied refugee claim.
(d)
There are skinheads among the Czech police.
On one occasion, a police officer approached the principal applicant in the
park and asked, “What are you black mug doing here?”
Impugned
Decision
[7]
The Board began its reasons by noting that
it had “some credibility concerns.” First, it indicated that the principal
applicant testified that he had suffered a concussion as a result of the attack
in Pisek and that he had spent some time in hospital, whereas, in his PIF he did
not mention that he was in hospital. The Board found this to be an
embellishment and that the applicant was, in fact, never in hospital as a
result of any skinhead attacks. Second, the Board concluded that “some of the
details surrounding the rape are inaccurate” and therefore gave “little weight
to the statement that the rape occurred because the second claimant’s mother
was of Roma ethnicity”. This finding was due to a discrepancy between the
principal applicant’s PIF and his testimony with regards to the number of
attackers involved.
[8]
The Board then went on to discuss
“discrimination vs. persecution”. It acknowledged that Romani children in the Czech
Republic are still “systematically turned away from
regular schools” and sent to remedial schools that cater to developmental
disabilities. It further acknowledged that these remedial schools provide
substandard levels of education that do “not meet the minimum requirements for
dignity.”
[9]
It then referred to a report from the Roma
Education Fund which indicated there had been improvements in recent years:
preparatory classes for children from difficult backgrounds, additional
teachers’ assistants to work in schools that had a high proportion of Roma,
free pre-school education, secondary school scholarships for Roma students,
abolition of special-education schools, and increased government funding. The
Board also referred to a government program entitled, “Reintegration of Roma
Pupils”, the objective of which was to correct cases where Romani students were
wrongfully placed in remedial schools. It also pointed to a decision of the
European Court of Human Rights [ECHR] which determined that the Czech
Republic had
indirectly discriminated against certain students by placing them in remedial
schools. The verdict obliged the Czech
Republic to enact legislation prohibiting discrimination against Romani
children in the education system.
[10]
The Board acknowledged that the treatment
of the applicants, in placing them in remedial schooling, was “obviously a form
of discrimination along with the verbal insults and the physical assaults.”
However, it found that since steps were being taken to deal with this
discrimination, and since the ECHR decision meant that the applicants would
have a remedy with regards to their eldest son’s placement, the Board concluded
that the situation with respect to education did not rise to the level of
persecution.
[11]
Turning to the principal applicant’s
difficulty in finding employment, the Board acknowledged that there may have
been some discrimination.
[12]
With respect to the allegation that the
police had discriminated against the principal applicant by calling him names,
the Board noted that this had only occurred once.
[13]
The Board then considered two of the
alleged assaults. Regarding the alleged attack in Pisek in 2005, the Board
reiterated that it had “some concerns about the embellishment of the details”
surrounding that incident. Regarding the alleged fires during Christmas of
2007, the Board concluded that there was no persuasive evidence that the fires
were set because the inhabitants were Roma.
[14]
The Board then indicated that the word
“persecution” had been ascribed the meaning of “sustained or systemic violation
of basic human rights demonstrative of a failure of state protection.” The
Board indicated that the physical attacks on the applicants would be canvassed
in the subsequent section on state protection and that; ultimately, there was
no persuasive evidence of a sustained or systemic violation of basic human
rights demonstrative of a failure of state protection.
[15]
It concluded its analysis of persecution by
stating: “I have also considered these matters singularly and cumulatively and
find that they do not rise to the level of persecution in either instance.”
[16]
On the issue of state protection, the Board
found that because the Czech Republic
is a democracy, the presumption of state protection is strong. The Board
pointed to Czech legislation which provided protection for the Roma, including
anti-discrimination and hate crimes legislation. It specifically pointed to
reforms in the Czech police force: the introduction of Roma Police Assistants,
the recruitment of Romani police officers, and the training of police on how to
better interact with minorities. The Board also noted that the Czech judiciary
had prosecuted a number of hate crimes committed against the Roma and that the
number of such proceedings had increased in recent years. In addition to the
police, the Board pointed to other avenues of assistance for the Romani: the
Czech Ombudsman, the approximately 400 Romani NGOs, the Czech Trade
Inspectorate, the Czech Helsinki Committee to investigate cases of police
misconduct, and the Social Inclusion Agency. The Board concluded that the
“preponderance of the documentary evidence indicates that the Czech Republic
government is making very serious efforts to provide protection to the Roma
whether as victims of hate crime, assist in obtaining health care or education,
or inclusion into Czech society.”
[17]
With respect to the 2006 incident at the
disco, the Board found that it was apparent that the police investigated the
situation and took statements from bystanders and concluded that no charges
were to be laid. It found that it would be difficult to arrive at a clear
picture of what occurred without any police reports or other statements. With
respect to the incident at the pub in 2008, the Board noted that the police
arrived and chased after the attackers. As such, the police did take some
action. Furthermore, the police were actively involved in investigating the
fires. On the whole, the Board concluded that in cases where the applicants
asked for police help, there was evidence that the police responded. Although
the applicants’ may not have been satisfied with the result, the Board found
that they had not rebutted the presumption of state protection with clear and
convincing evidence.
[18]
Ultimately, the Board rejected the
applicants’ claim for protection.
Issues
[19]
The issues before the Court are the
following:
(a)
Did
the Board err in finding that the applicants did not face persecution in the Czech Republic?
(b)
Did
the Board err in finding that state protection was available to the applicants
in the Czech
Republic?
Standard of
Review
[20]
The
identification of persecution behind incidents of discrimination or harassment
has consistently been reviewed by this Court against a standard of
reasonableness: see Tetik v Canada (Minister of Citizenship and
Immigration), 2009 FC 1240, 86 Imm LR (3d) 154, at para 25; Liang v Canada (Minister of
Citizenship and Immigration), 2008 FC 450, 166 ACWS (3d) 950, at para
12. It is also well-established that the standard of review to apply to the
issue of state protection is reasonableness: see Tetik, above, at para
25; Mendez v Canada (Minister of Citizenship and Immigration), 2008 FC
584, 168 ACWS (3d) 596 at paras 11-13.
[21]
In
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190, at para 47, the Supreme Court of Canada held that:
…reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
Argument and
Analysis
(a)
Did
the Board err in finding that the applicants did not face persecution in the Czech Republic?
[22]
The
applicants argue that the Board erred by not properly considering whether,
cumulatively, the discrimination and the physical attacks they experienced in
the Czech
Republic constituted
persecution. They claim that the Board simply proceeded sequentially through
their evidence without appreciating the totality of it. They argue that it was
incumbent on the Board to explain why it found that their experiences,
cumulatively, did not amount to persecution.
[23]
The
applicants further submit that the Board compounded this error by only
addressing two of the incidents of harassment and physical attack - the 2005
incident in Pisek, and the 2007 fire incident - as part of its persecution
analysis, and left other incidents for consideration as part of the state
protection analysis only. They allege that the Board completely failed to
address certain incidents, such as: the murder of the principal applicant’s
cousin (which was supported by video evidence), the attack on the principal
applicant’s son, and the attack on the principal applicant’s brother-in-law.
[24]
The
applicants also argue that the Board erred in its treatment of the documentary
evidence as to persecution. They submit that the Board was selective in its
treatment of the evidence regarding education, and that it completely ignored
the country conditions documents on issues such as: physical attacks,
employment discrimination, and housing discrimination. The applicants claim
that it was incumbent on the Board to explicitly discuss this evidence as it
ran counter to the Board’s ultimate conclusion that the applicants’ experiences
had not amounted to persecution.
[25]
The
respondent argues that the Board considered the physical attacks on the applicants,
singularly and cumulatively, and reasonably found that they did not rise to the
level of persecution. The respondent submits that every serious incident
alleged by the applicants had been dealt with in the Board’s reasons.
Ultimately, the respondent contends, the applicants have not demonstrated that
the Board’s finding as to a lack of persecution was unreasonable.
[26]
In
order to be considered a convention refugee under section 96 of the IRPA, an
applicant must demonstrate that they hold a well-founded fear of being
persecuted on the basis of their race, religion, nationality, membership in a
particular social group, or because of their political opinion.
[27]
It
has been recognized, on numerous occasions, that where the evidence establishes
a series of actions which can be characterized as discriminatory, if not
persecutory, it is incumbent on the Board to consider the cumulative nature of
that conduct in order to determine whether, if taken together, it might
constitute a valid basis for a well-founded fear of persecution. The Federal
Court of Appeal indicated in Munderere v Canada (Minister of
Citizenship and Immigration), 2008 FCA 84, 291 DLR (4th) 68, at para 42,
that:
…the Board is duty bound to consider all
of the events which may have an impact on a claimant's claim that he or she has
a well founded fear of persecution, including those events which, if taken
individually, do not amount to persecution, but if taken together, may justify
a claim to a well founded fear of persecution.
[28]
Justice
Eleanor Dawson in Mete v Canada (Minister of
Citizenship and Immigration), 2005 FC 840, 46 Imm LR (3d) 232, at paras
4-6, indicated:
4 The following three legal
principles are not controversial. First, in Rajudeen v. Canada (Minister of
Employment and Immigration) (1984), 55 N.R. 129, the Federal Court of
Appeal defined persecution in terms of: to harass or afflict with repeated acts
of cruelty or annoyance; to afflict persistently; to afflict or punish because
of particular opinions or adherence to a particular creed or mode of worship; a
particular course or period of systematic infliction of punishment directed
against those holding a particular belief; and persistent injury or annoyance
from any source.
5 Second, in cases where the evidence
establishes a series of actions characterized to be discriminatory, and not
persecutory, there is a requirement to consider the cumulative nature of that
conduct. This requirement reflects the fact that prior incidents are capable of
forming the foundation of present fear. See: Retnem v. Canada (Minister of Employment and
Immigration)
(1991), 132 N.R. 53 (F.C.A.). This is also expressed in the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status ("Handbook on
Refugee Status") in the following terms, at paragraph 53…
6 Third, it is an error of law for
the RPD not to consider the cumulative nature of the conduct directed against a
claimant. See: Bobrik v. Canada (Minister of Citizenship and
Immigration) (1994), 85 F.T.R. 13 (T.D.) at paragraph 22, and the authorities
there reviewed by my colleague Madam Justice Tremblay-Lamer.
[Emphasis added]
[29]
The
United Nations High Commissioner for Refugees’ Handbook on Procedures and
Criteria for Determining Refugee Status under the 1951 Convention and the 1967
Protocol relating to the Status of Refugees (the “UN Handbook”) explains
the rationale behind the requirement to consider the cumulative nature of past
experiences, it indicates that:
[53]…an applicant may have been subjected
to various measures not in themselves amounting to persecution (e.g.
discrimination in different forms), in some cases combined with other adverse
factors (e.g. general atmosphere of insecurity in the country of origin). In
such situations, the various elements involved may, if taken together, produce
an effect on the mind of the applicant that can reasonably justify a claim to
well-founded fear of persecution on “cumulative grounds”…
[30]
The
obligation to consider the cumulative effect of past treatment also reflects the
principle that prior incidents are capable of forming the basis of present fear:
see Retnem v Canada (Minister of Employment
and Immigration) (1991), 132 NR 53, 27 ACWS (3d) 481 (FCA). As
Chief Justice Arthur Thurlow indicated in Alfredo Manuel Oyarzo Marchant
v Minister of Employment and Immigration, [1982] 2 FC 779 (CA):
…since it is the foundation for a present
fear that must be considered, such incidents in the past are part of the whole
picture and cannot be discarded entirely as a basis for fear, even though what
has happened since has left them in the background.
[31]
A
careful reading of the Board’s decision leaves no doubt that it was aware of
its obligation to consider the cumulative effects of the applicants’ past
experiences in order to determine whether the applicants held a well-founded
fear of persecution, as opposed to mere discrimination, in the Czech
Republic.
At paragraph 26 of its reasons, the Board asked the right question: “Does the
discrimination suffered by these claimants amount to persecution when
considered singularly or cumulatively?” However, the Board posed this question
only after considering the applicants’ past experiences sequentially; it first
considered the discrimination they faced surrounding education, then the employment
discrimination, followed by the discrimination by the police, and finally the
physical assaults. The Board went on, after presenting a definition of
“persecution”, to conclude: “I have… considered these matters singularly and
cumulatively and find that they do not rise to the level of persecution in
either instance.” It failed to provide any analysis of the cumulative effects
of the discriminatory incidents and explain why these incidents, in the
aggregate, did not amount to persecution.
[32]
Justice
Yves de Montigny made a similar observation in Tetik v Canada (Minister of
Citizenship and Immigration), 2009 FC 1240, 86 Imm LR (3d) 154, at para
27:
…The RPD was obviously aware of the
cumulative persecution test, but in fact did not review the discriminatory acts
as a whole and proceeded sequentially through the chronology recounted by the
applicants without appreciating the totality or cumulative effect of their
uncontradicted evidence about the treatment that they had endured. This was a
crucial error…
[33]
The
Board’s analysis in the present case is also somewhat similar to the analysis
at issue in Rahman v Canada (Minister of
Citizenship and Immigration), 2009 FC 768, 348 FTR 69. Justice James
Russell, in that case, indicated, at paras 65-67:
65 The Board says at paragraph 21
that the determination that the Applicant will not be persecuted if returned to
Lebanon is made "by not only
scrutinizing the various forms of discrimination that the claimant has endured,
but also by examining the various forms of discrimination cumulatively."
The Board then goes on to scrutinize "the various forms of
discrimination" separately, but never provides any real explanation as
to why the cumulative impact does not amount to persecution.
66 As Justice Dawson pointed out in Mete
v. Canada (Minister of Citizenship and
Immigration)
2005 FC 840 at paragraph 9 "it is insufficient for the RPD to simply
state that it has considered the cumulative nature of the discriminatory acts."
67 As in Mete, the Board in
the present case "completely failed to consider the cumulative effect of
the conduct characterized ... to be discriminatory or harassing, as required by
the Federal Court of Appeal in Retnem, [1991] F.C.J. No. 428, and as
explained in the Handbook on Refugee Status." It is not enough for the
Officer to simply say that he has examined "the various form of
discrimination cumulatively." The reasons need to articulate why the
long history of appalling discrimination by the State of Lebanon against the Applicant as a stateless
Palestinian does not amount to persecution. There is no indication in the Decision
as to what test and what reasoning the Board applied to the issue of whether
the cumulative impact of discrimination did not amount to persecution.
[Emphasis added]
[34]
Since
the Board specifically acknowledged in its reasons that what the applicants had
experienced with respect to their education, the repeated verbal insults, and
the numerous physical assaults, was “obviously” discriminatory in nature, and
since the Board acknowledged that there “may have been discrimination” relating
to the principal applicant’s employment, it was incumbent on the Board to
explain why this wide-ranging discrimination did not amount,
cumulatively, to persecution.
[35]
I
also support the applicants’ view that the Board erred in only mentioning two
of the assaults as part of its “discrimination vs. persecution” analysis: the
2005 incident in Pisek, with which the Board had credibility concerns, and the
2007 house fires. The Board indicated, “[t]he physical attacks on the claimants
are considered in the following section on state protection.” However, as the
applicants rightly point out, this is problematic: it suggests that the Board
did not necessarily consider the totality of the physical assaults before
determining that the cumulative effect of the attacks, coupled with the
discrimination in other areas, did not amount to persecution. Justice de
Montigny in Tetik, above, at para 29, indicated:
29 Furthermore, I agree with the
applicants that the RPD did not consider the most serious harassment acts in
the persecution analysis, but only in the state protection part of its reasons.
The RPD focused on the minor incidents and on the events that do not even
constitute discrimination (ostracism by the families, Ceday's treatment in
kindergarten) in the part of its reasons dealing with persecution. The more
serious incidents of threats and assaults were discussed but only in the
context of state protection. The physical assaults they have suffered should
have been considered in the cumulative effect analysis; failing to do so means
that the RPD did not consider the totality of the circumstances before
concluding there was an absence of persecution. [Emphasis added]
[36]
Some
of the alleged assaults were not referenced by the Board at all. Assaults that
were mentioned by the principal applicant for the first time at the hearing
before the Board (and not mentioned in the applicants’ PIFs) were not
considered by the Board in its reasons. Included amongst the incidents omitted
by the Board from its reasons were: the allegation that the principal
applicant’s cousin had been attacked and killed by skinheads in 1992, the
allegation that the principal applicant’s eldest son was attacked on his first
day of school, as well as the allegation that the principal applicant’s
brother-in-law had recently been attacked in the Czech Republic following a
failed refugee claim in Canada. Since the Board did not indicate that it had
any credibility concerns with respect to these allegations, it should have
considered these assaults as part of its cumulative analysis.
[37]
Finally,
with respect to the applicants’ argument that the Board erred in its treatment
of the documentary evidence as to Romani persecution in the Czech Republic,
Justice John O’Keefe did indicate at para 25, in Kaleja v Canada (Minister
of Citizenship and Immigration), 2010 FC 252, that, “the principle that
documentary evidence on persecution of a particular social group should be
seriously evaluated is applicable to Roma cases.” The Board adequately
addressed the documentary evidence as it pertained to access to education by
noting both that there was “still a lot of prejudice” in this regard, and that
measures were being taken to improve the situation. However, the Board failed
to canvass the documentary evidence related to the other areas of concern
raised by the applicants, principally: employment and the fear of being
physically attacked.
[38]
For
example, the US Department of State (US DOS) report on the human rights
practices in the Czech Republic entitled, “Country Reports on Human Rights
Practices for 2008” (February 25, 2009), indicated that:
The law prohibits employment
discrimination based on ethnicity; however, Roma continued to face
discrimination in both employment and education. Precise figures were
unavailable, but the unemployment rate for Roma was estimated to be
approximately 75 percent. Some employers refused to hire Roma and requested
that local labour offices not send them Romani applicants.
[Emphasis added]
[39]
Instead
of addressing any of the country conditions evidence as to employment, the
Board determined that, “there may have been discrimination” in relation to the
principal applicant’s employment. This failure by the Board to acknowledge reliable
documentary evidence linking discrimination to very high levels of unemployment
for Roma in the Czech Republic constitutes an error to
properly engage with the evidence before it.
[40]
The
same US DOS report addressed the issue of physical attacks against the Roma. It
indicated, “Neo Nazis, members of the far right Workers Party, and skinheads
attacked and harassed Roma and other minorities during the year,” as well as
that, “[m]embers and sympathizers of skinhead organizations were the most
frequent perpetrators of acts of interethnic violence, particularly against
Roma.” The Board should have addressed this type of objective country
conditions evidence before making a determination as to whether what the
applicants had faced in the Czech Republic amounted to persecution or merely
discrimination.
[41]
These
omissions by the Board lead me to conclude that the Board’s determination that
the applicants’ experiences in the Czech Republic did “not rise to the
level of persecution” was unreasonable. The Board failed to conduct a proper
cumulative analysis, failed to sufficiently address the individual incidents of
mistreatment alleged by the applicants, and failed to adequately canvas the
objective country conditions documents.
(b) Did the Board err in
finding that state protection was available to the applicants in the Czech Republic?
[42]
The
applicants argue that the Board erred by referring to, and taking note of, only
selective documentary evidence on the issue of state protection. They submit
that the Board ignored or failed to take note of documentary evidence that
tended to demonstrate that state protection was, in fact, inadequate for
similarly situated individuals in the Czech Republic.
[43]
The
applicants further submit that the Board erred by not properly considering
their previous unsuccessful attempts to obtain protection in the Czech Republic.
They point out that the Board completely failed to address state protection in
the context of the adult applicants’ allegations that: they were ignored by
their teachers when they were attacked as children, they were laughed at by the
police after the 2005 attacks in Pisek, they were laughed at by the police with
respect to the 2007 rape, nobody was punished with respect to the murder of the
principal applicant’s cousin in 1992, the principal applicant’s cousin was
unable to receive police protection regarding the incident in 2010, and that
the police have skinheads among them and had used racist insults against the
principal applicant and other Roma in the past.
[44]
Overall,
the applicants argue that the mere existence of state protection remedies is
insufficient, and that an assessment of the adequacy of state protection
includes determining whether, in practice, those remedies are useful. The
applicants argue that, in light of the errors in analyzing the country
conditions documents, as well as the errors in assessing the applicants’
personal attempts to obtain state protection, the Board’s analysis of the
adequacy of state protection was unreasonable.
[45]
The
respondent argues that the applicants did not satisfy the legal or evidentiary
burden of providing evidence of sufficient probative value to rebut the
presumption of state protection. As such, the respondent submits that the
Board’s decision that state protection in the Czech Republic was adequate
was reasonable.
[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.
[48]
Completely
absent from the Board’s discussion was any recognition of the objective
evidence pointing towards a potential inadequacy in state protection. For
instance, the 2009 Amnesty International Report on Human Rights in the Czech
Republic
indicated:
The
government again failed to implement adequate anti-discrimination provisions.
The Roma continued to experience discrimination, particularly in accessing
education, housing and health, as well as threats of attacks by far-right
groups.
The US DOS report on the human rights practices
in the Czech Republic entitled, “Country Reports on Human Rights Practices for
2008” (February 25, 2009), indicated:
The laws
prohibit discrimination based on race, gender, disability, language, or social
status; however, significant societal discrimination against Roma and women
persisted.
The Board’s own Response to Information Request,
CZE102667.EX (December 12, 2007) stated:
However,
according to the ERRC, in 2006 there was "near total impunity for racial
discrimination against Roma" in the Czech Republic (1 Mar.
2007). The International Helsinki Federation for Human Rights (IHF) states that
in the majority of cases involving neo-Nazis targeting minorities, including
Roma, "authorities, including the police, turned a blind eye" (IHF
2007). According to IPS, a survey conducted in 2006 found that "courts
rarely investigate cases of racial discrimination" (6 Apr. 2007), although
further details on this survey could not be found among the sources consulted
by the Research Directorate.
An earlier Response to Information Request,
CZE100727.E (January 26, 2006) provided:
However, the
International Helsinki Federation for Human Rights (IHF) remarked that police
"often failed to act adequately" in cases of violent attacks against
Roma in 2004 (IHF 27 June 2005) and, according to the United States (US)
Department of State, there remained some "judicial inconsistency in
dealing firmly with racially and ethnically motivated crimes" (Country
Reports 2004 28 Feb. 2004, Sec. 5).
Even the document relied on by the Board, the
2009 issue paper, indicated:
Other NGO
interlocutors claimed that the police tended to address acts of extremism only
when they were considered serious or too high-profile to ignore…
[49]
In
the present case, I find that it was unreasonable for the Board to have focused
on the “very serious efforts” being employed by the Czech Republic to protect
Romani citizens to the exclusion of the evidence showing that, in practice,
those efforts may have been inadequate. The Board was not required to refer to
every piece of evidence placed before it. However, in view of the fact that
reliable and relevant country conditions evidence supporting the applicants’
position had been presented, the Board had an obligation to acknowledge that
evidence and explain why it was satisfied that, despite that evidence, the
government’s “very serious efforts” were sufficient: see Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, 83
ACWS (3d) 264 (TD).
[50]
Given
the Board’s unreasonable treatment of the objective country conditions
evidence, it is unnecessary to move on to consider the Board’s treatment of the
applicants’ personal experiences with respect to state protection. The Board’s
unreasonable treatment of the country conditions evidence undermines its
conclusion as to the existence of state protection. As such, there was a lack
of justification, transparency and intelligibility within the Board’s
decision-making process which rendered its overall determination unreasonable.
Conclusion
[51]
Since
the Board failed to properly analyze the question of persecution, and since the
Board erred in its state protection analysis by inadequately surveying the country
conditions evidence, I am allowing this application for judicial review.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
the
application for judicial review is allowed; and
2.
there
is no question of general importance to certify.
“André
F.J. Scott”
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