Date: 20110609
Docket: IMM-4106-10
Citation: 2011 FC 668
Ottawa, Ontario, June 9,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MICHAL KALEJA
DAGMAR KALEJOVA
TEREZIE KALEJOVA
LUCIE KALEJOVA
MICHAELA KALEJOVA
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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 for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated June 17, 2010,
wherein the Applicants were determined to be neither convention refugees nor
persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, RS 2001, c 27 [IRPA].
[2]
Based
on the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicants are citizens of the Czech Republic. The father, Michal
Kaleja, is Roma. His wife, Dagmar Kalejova, is Caucasian. They have three
daughters, Michaela, Terezie and Lucie, who are perceived as Roma. They fear
persecution on the grounds of race and membership in a particular social group.
[4]
The
Applicants allege they suffered various and ongoing forms of discrimination because
of their Roma ethnicity. The father’s Personal Information Form (PIF) recounts
harassment, intimidation and other forms of persecution at the hands of
Skinheads, Neo-nazis and Caucasians while growing up and continuing on in
adulthood. The Applicants regularly faced discrimination from their
neighbours. The children were harassed at school.
[5]
The
PIF lists several specific incidents. Among them, Neo-nazis threw a molotov
cocktail through the Applicants’ window in 2001. The father claims he was
viciously attacked by Skinheads in 2006. He was stabbed during the incident.
In 2002 a neighbourhood Caucasian child threatened to kill Lucie with a rock.
Terezie was falsely accused of stealing a cell phone at school in 2000. Her
mother was called. The incident escalated and the mother needed to call the
police.
[6]
According
to the PIF the police were called after each one of these incidents, but the
result was the same. The police would take part in questioning but nothing
else would ever happen. However, on at least one occasion the father admitted
to being too afraid to press charges.
[7]
Michaela
left home in 2008 and did not return. A few weeks later, some Ukrainian-Russian
men allegedly entered the Applicants’ home and attacked the family, warning
them not to look for Michaela, otherwise risk being killed. The family
believed the young men were associated with Michaela’s Ukrainian boyfriend.
Soon after this, the family, minus Michaela, took steps to leave the country
and arrived in Canada on May 12, 2008.
[8]
Michaela
arrived separately in Toronto on December 5, 2008.
She was pregnant. She claimed to have been in the Ukraine with her
boyfriend, the father of her child. In the Port of Entry interview she
explained that she had run off to be with him because she was scared to tell
her parents that she was pregnant. He threw her out 5 months later. At the
hearing, the testimony revealed that Michaela’s boyfriend was abusive and the
Applicants claimed to be afraid of him and the other Ukrainian men who attacked
them.
B. Impugned
Decision
[9]
The
Board determined that the evidence relating to Michaela’s abusive former
boyfriend was unreliable and that there was not a serious possibility that the
Applicants would be at risk of harm from him.
[10]
The
rest of the claim was assessed on the risk of harm based on the Applicants’
Roma ethnicity. The Board found that the determinative issue in the claim was
state protection. While the Board acknowledged that the experience of the
Applicants was mixed with respect to the ability and willingness of the state
to protect, the Board found that when the Applicants called the police they
responded. While the protection offered was not always effective, the Board
found that the Applicants had failed to rebut the presumption of state
protection based on the test of adequacy. The Applicants were unable to
provide clear and convincing evidence that the Czech state is unwilling or
unable to provide adequate protection. The Board went on to examine what
efforts the Czech
Republic
has undertaken to protect Roma, and the effects of those efforts. The Board
concluded that the Applicants “did not experience failure of the protection of
the state as much as a failure of societal attitudes in the Czech Republic”,
and that there was no evidence that adequate state protection would not be
reasonably forthcoming should the Applicants need it.
II. Issues
[11]
This
application raises the following issues:
(a) Did
the Board make an unreasonable credibility finding?
(b) Did
the Board err in its analysis of state protection?
(c) Did
the Board ignore the Applicants’ claim of cumulative persecution?
(d) Did
the Board err in failing to conduct a separate section 97 analysis?
III. Standard
of Review
[12]
It
is well-established that decisions of the Board as to credibility and the interpretation
and assessment of evidence are all reviewable on a standard of reasonableness (Lawal
v Canada (Minister of
Citizenship and Immigration), 2010 FC 558 at para 11; NOO v Canada (Minister of
Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 at para
38).
[13]
The
determinative issue in the present case was state protection. This is a
determination of mixed fact and law, which is within the specialized expertise
of the Board. As such, it is also reviewable on a standard of reasonableness (Zupko
v Canada (Minister of
Citizenship and Immigration), 2010 FC 1319 at para 5).
[14]
As
set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
reasonableness requires consideration of the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
IV. Argument
and Analysis
A. Did
the Board Make an Unreasonable Credibility Finding?
[15]
The
Board found that there was no threat to the family from Michaela’s boyfriend,
and even if the Board erred in this assessment they did not find, on a
forward-looking basis, an objectively well-founded fear or harm or future
risk. The Board based this first conclusion on its characterization of the
evidence relating to the boyfriend as unreliable. Michaela testified that her
boyfriend started hitting her when she declined to marry him, yet, this
information was not provided in her Port of Entry (POE) interview or PIF. The
prospective risk finding was based on a lack of persuasive evidence that the
boyfriend had any kind of power or influence that would enable him to find out
if any of the Applicants were to return to the Czech Republic.
[16]
The
Applicants submit that the Board erred in several regards. Firstly, the Board
ought to have considered that the boyfriend has an interest in finding Michaela
as he has enforceable rights and obligations to the child. Secondly, the Board
erred in drawing a negative inference from Michaela’s inconsistent testimony
regarding the abusive relationship. Thirdly, the Board erred in failing to
explain why they ignored the evidence that the boyfriend had called her and
threatened her in Canada.
[17]
With
respect, I find no reviewable error with respect to any of the above issues.
The Board discussed the possibility of the boyfriend wanting to obtain custody
of the child at the hearing. The below exchange illustrates that a potential
custody battle is of no real concern to the Applicants:
Q: Okay. So now two parents
have rights to the child, both the man and the woman but one of them, if
they’re separated, usually one of them gets custody which means they get to
care for them and keep them and raise them and so on and sometimes it takes a
court to decide which parent gets to do that and sometimes it turns out the mom
gets the child and the dad is supposed to support with some finances and gets
to see the child once in a while and sometimes it’s the other way around.
So is there a court in the Czech Republic that you can or your daughter can go and
do that? If you know.
A: Yes, it’s possible but this child
doesn’t have the father’s name and he is not in the birth certificate as a
child. (CTR pg 602)
[18]
In
terms of credibility findings, it is open and reasonable, and is in fact a
well-accepted and standard practice, for the Board to base credibility findings
on omissions and inconsistencies between POE notes, PIFs and a claimant’s
testimony at the hearing. The Respondent provided, and I accept, a concise
statement of the law on PIF omissions by way of Justice Max Teitelbaum writing
in Basseghi v Canada (Minister of Citizenship and Immigration), 52 ACWS
(3d) 165, [1994] FCJ No. 1867 (QL) at para 33:
[33] It is not incorrect
to say that answers given in a PIF should be brief but it is incorrect to say
that the answers should not be complete with all of the relevant facts. It is
not enough for an applicant to say that what he said in oral testimony was an
elaboration. All relevant and important facts should be included in one's PIF.
The oral evidence should go on to explain the information contained in the PIF.
[19]
The
Board explicitly considered the Gender Guidelines in relation to
Michaela’s evidence and stated at para 11 of the reasons:
while I certainly accept and understand
that some women might not reveal the existence of abuse in their relationship
immediately, in this case reviewing as a whole the notes taken when she first
made her claim for protection reveals a different story.
[20]
At
the POE Michaela would not reveal her boyfriend’s name because she did not want
to get him into trouble with the Czech authorities. She claimed not to know
his last name or what he did for a living. She claimed he had lost interest in
her. Michaela’s story changed at the hearing. The Board was entitled to draw
a negative credibility inference and this Court must uphold that finding as
long as it is reasonable. I find that it is.
[21]
The
Board did consider the threatening telephone call in the reasons, mentioning it
explicitly at para 14. The Board does not debate its existence. The Board was
nevertheless not convinced that the boyfriend posed a risk of prospective harm
to the family. Based on the evidence, this was a reasonable finding.
[22]
As
the Respondent submits, the Applicants’ submissions with respect to the
credibility findings are nothing more than an invitation for this Court to
reweigh evidence that has already been reasonably assessed by the Board.
Consequently, I must refuse the invitation to invent an alternative line of
reasoning as that falls outside the scope of this Court’s duty upon judicial
review.
B. Did
the Board Err in its Analysis of State Protection?
[23]
The
determinative issue in this claim for protection was state protection. The
Board found that the Applicants did not provide clear and convincing evidence
that adequate state protection would not be forthcoming should they need it.
[24]
The
Applicants submit that the Board applied the incorrect test and erred in finding
that the Applicants had not rebutted the presumption. In their written
submissions the Applicants support these contentions with long excerpts of case
law.
[25]
I
accept the Respondent’s submissions on this point. The Board applied the
correct test. This Court has recently and repeatedly confirmed the Federal
Court of Appeal’s ruling in Carillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94, 69 Imm LR (3d) 309 that that the test for a
finding of state protection is whether that protection is adequate, not whether
it is effective, per se. This was observed by Justice Richard Mosley in Flores
v Canada (Minister of
Citizenship and Immigration), 2008 FC 723 wherein he also commented
that, “It is not enough for a claimant merely to show that his government has
not always been effective at protecting persons in his particular situation”
(at para 10).
[26]
The
Board is not obliged to prove that the Czech Republic can offer the Applicant
effective state protection, rather, the Applicant bears the legal burden of
rebutting the presumption that adequate state protection exists by adducing
clear and convincing evidence which satisfies the Board on a balance of
probabilities (Carillo, above, at para 30). The quality of the evidence
will be proportional to the level of democracy of the state (Avila v Canada (Minister of
Citizenship and Immigration), 2006 FC 359, 295 FTR 35 at para 30).
[27]
The
Board undertook a detailed consideration of the Czech Republic’s current
efforts to protect the Roma. The Board noted that there are concerns that
these efforts are not adequate but that the preponderance of the evidence
indicates that the state is taking action against extremists and does not
condone or acquiesce to extremist actions, and those actions are effective. The
Board further notes that discrimination against the Roma in the Czech Republic is
prevalent. However, that Czech Republic was taking steps to
assist the Roma in several ways to ensure that they would be able to
participate in Czech society. Among these initiatives was the establishment of
an agency to combat the social exclusion experienced by the Roma and improve
socio-economic conditions through improved access to employment and mainstream
education.
[28]
The
Applicants did not provide any clear and convincing evidence that the Czech
Republic
continues to be unable or unwilling to protect them. In fact, the father
recounted an incident in his PIF where the police told a family that was
harassing the Applicants “to be grateful that the Kaleja family was not
pressing charges and prosecuting the case.” The father goes on to say that
they were afraid of pressing charges because they feared retaliation. However,
unwillingness to access state protection is not a basis for proving that it
does not exist.
[29]
I
find that the Board’s finding of fact regarding state protection in the Czech Republic was
reasonable, and established that state protection, while at times ineffective,
was adequate.
C. Did
the Board Ignore the Applicants’ Claim of Cumulative Persecution?
[30]
The
Applicants submit that the Board erred in its analysis by not considering the
effects of cumulative persecution. I do not find this argument persuasive.
The doctrine of cumulative persecution allows for the possibility that
non-persecutory actions may accumulate and give rise to a well-founded fear of
persecution. In the present matter, there was never any dispute that the
harassment and discrimination suffered by the Applicants amounted to
persecution due to their ethnicity. The Board did not find otherwise. What
the Board did find, and what disposed of the Applicants’ claim, was that the
state was able to offer them adequate protection.
[31]
The
Applicants relied on Munderere v Canada (Minister of
Citizenship and Immigration), 2008 FCA 84, 291 DLR (4th) 68 in making
the cumulative persecution argument. However, as the Respondent submits, Munderere
has the effect of reaffirming that, as the Board determined in the instant
matter, the availability of state protection is key for determining whether the
claimant has a well-founded fear of persecution. The Court stated at para 45:
[45] The plain fact is that whether
a claimant relies on a single or a number of events taken together, he still
has the obligation to satisfy the Board that, at the time of the hearing, he
has a well founded fear of persecution in regard to the country from which he
seeks protection. He has to show that by reason of a Convention ground, he is
unable or unwilling to avail himself of the protection of that country. Thus,
in the present matter, are the respondents unable or unwilling to avail
themselves of the protection of Rwanda or, to put it in a different way, is Rwanda able to protect the
respondents should they return?
D. Did
the Board Err in Failing to Conduct a Separate Section 97 Analysis?
[32]
The
substance of the Board’s section 97 analysis reads as follows:
There was no residual information upon
which a claim under this section could be determined that was not already
considered above. Therefore, I find that claimants are not persons in need of
protection and their claims under section 97 of the IRPA fail.
[33]
The
Applicant submits that claimants are entitled to a separate section 97 analysis
if there is credible evidence.
[34]
The
jurisprudence on this issue is mixed, but, as per Justice Mosley at para 22 of Soleimanian
v Canada (Minister of
Citizenship and Immigration), 2004 FC 1660, 135 ACWS (3d) 474:
[22] This Court seems to have come
to a consensus that a separate section 97 analysis is not required if there is
no evidence that could go to establishing that the person is in need of
protection […]
[35]
In
that case, the Court found that there was no other evidence before the Board
that the claimant was a person in need of protection. Similarly, in the
present matter the Applicants section 97 claim rested entirely upon their
assertion that they would be persecuted for being Roma. The only alternative
basis upon which the Board might have determined that the Applicants were in
need of protection under section 97 was their fear of Michaela’s former
boyfriend. However, a negative credibility finding in relation to a section 96
claim obviates the need to consider it under section 97 (Mejia v Canada
(Minister of Citizenship and Immigration), 2010 FC 410). Evidence for both
sections was the same, co-mingled and intended to support either finding, but
was found to be insufficient to do so.
V. Conclusion
[36]
Counsel
for the Applicant proposed the following question for certification:
In light of F.H. v McDougall, 2008
SCC 53, has the test for "clear and convincing" evidence been removed
in relation to the quality of evidence required to rebut the presumption of
state protection?
I have
reviewed the written submissions made on behalf of the Applicant and the
Respondent and find that the above noted question should not be
certified. I see no inconsistency between the F.H. v McDougall
case that dealt with standard of proof required in civil cases and the
requirement for an applicant to submit "clear and convincing
evidence" in order to rebut the presumption of state protection and as
such find that the suggested question does not raise an issue of broad
significance.
[37]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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