Date: 20110624
Docket: IMM-5503-10
Citation: 2011 FC 769
Ottawa, Ontario, June 24,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
SARKA KELLESOVA
RENE KELLES
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
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 August 19,
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 below, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicants, Sarka Kellesova (the Principal Applicant, “PA”) and her minor son,
Rene Kelles (Minor Applicant) are both citizens of the Czech Republic. They
arrived in Canada on February
28, 2009 and filed claims for refugee protection at the airport.
[4]
The
Applicants are Roma. Because of her ethnicity, the PA claims that she first
faced discrimination during her school years. As an adult, she had difficulty
procuring employment.
[5]
The
PA’s son was born in 1993, and he experienced racism as early as grade one.
The other students made derogatory comments to him, and he became fearful of
attending school. When he was eight years old, he was physically attacked by
two older boys. Again, in November 2008, the Minor Applicant was physically
attacked by a Czech white male.
[6]
The
PA was physically assaulted by a white Czech woman in 2009. Witnesses to the
attack did nothing to assist the PA. According to her Personal Information
Form (PIF), she visited the police station to file a complaint, but the police
would not assist her.
[7]
After
the latest incident, the PA and her son fled to Canada.
B. Impugned
Decision
[8]
The
Board found state protection to be the determinative issue in rejecting the
Applicants’ claim. The PA had not approached the Czech police since 2006.
Although her PIF stated that she sought police assistance in 2009, she
testified that her PIF was erroneous. She explained that she did not approach
the police following the attack on the Minor Applicant in 2008 because of her
previous experience with the police. When the Board questioned her further,
she admitted that her previous experience of police inaction was in 2001.
[9]
The
Board remarked that the PA was not diligent in pursuing state protection. Although
the PA allegedly experienced problems prior to moving to the United Kingdom for
one month of work, she re-availed to the Czech Republic in 2006.
Subsequent to her return, despite allegations of persecutory attacks in 2008
and 2009, she never approached the police for state protection or assistance.
Consequently, the Board concluded that she failed to provide clear and
convincing evidence of the state’s inability to protect her and her son,
stating at page 12:
The Board has considered the
principal claimant’s testimony, and concludes that her oral testimony is not
corroborated by the preponderance of the documentary evidence. She did not
approach the police and we do not accept her reasons for not doing so. Her
prior experience was dated nine years ago. Although her fears may be
subjective, we conclude that there is no objective basis for her fears.
II. Issue
[10]
This
application raises only one issue:
(a) Was the Board’s state protection
finding reasonable?
III. Standard
of Review
[11]
The
determinative issue in the present case was state protection. Determining
whether the Applicants rebutted the presumption of state protection is an issue
of mixed fact and law, which is within the specialized expertise of the Board.
As such, it is reviewable on a standard of reasonableness (Zupko v Canada (Minister of
Citizenship and Immigration), 2010 FC 1319, 94 Imm LR (3d) 312 at
para 5).
[12]
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 within 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. Was
the Board’s State Protection Finding Reasonable?
[13]
The
Applicants submit that the documentary evidence they submitted at the hearing
was twisted against them in and used in a biased manner by the Board. The
Applicants also submit that the Board misconstrued the evidence before it.
[14]
The
Board rejected the Applicants’ claim because they were unable to show that the state
was unable to protect them, or that aid would not be forthcoming in the future;
thus they failed to rebut the presumption of state protection. The Board came
to this conclusion after weighing the documentary evidence, which admittedly
had some disparate information. Mrs. Kellesova, who was self-represented at
the hearing, failed to show that this finding was unreasonable.
[15]
For
instance, the Board considered that according to Amnesty International, the
Roma continue to suffer discrimination from public officials and private
individuals in education, housing, health and employment and that police
generally have a negative view of Roma that sometimes includes discriminatory
or disrespectful language. However, the Board reviewed evidence showing that
EU accessions had led to changes and a positive impact on Czech Roma. The
Czech police are obliged by law to respond to all distress calls and notify the
parties of the outcome of their complaints. Furthermore, there are active
NGO’s providing a range of services for Roma, including legal assistance,
reemployment support and educational activities.
[16]
The
Board is not obliged to prove that the Czech Republic can offer the Applicants
effective state protection, rather, the Applicants bear 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 v Canada (Minister of Citizenship and Immigration),
2008 FCA 94, 69 Imm LR (3d) 309 at para 30). The test for whether state
protection “might reasonably be forthcoming” (as laid out in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689) is objective and as per
Justice Judith Snider in Judge v Canada (Minister of Citizenship and
Immigration), 2004 FC 1089, 133 ACWS (3d) 157 at para 13, “[i]t is not
sufficient for the Applicant to simply believe that she could not avail herself
of state protection.”
[17]
Absent
evidence from the Applicants showing that the state is unwilling or unable to
protect them, the Board’s finding is reasonable and supported by the evidence
in the record. There is no reason for this Court to intervene.
V. Conclusion
[18]
No
question was proposed for certification and none arises.
[19]
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 ”
Email this Content