Docket: IMM-1623-11
Citation: 2011 FC 1068
Ottawa, Ontario, September 12,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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SLAVOMIR GREGOR
LUCIE KOVACIKOVA
KRISTYNA GREGOROVA
NELA GREGOROVA
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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 February 2,
2011. The Board determined that the applicants were not Convention refugees or
persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, RS 2001, c 27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
Slavomir
Gregor (the Principal Applicant) and his wife, Lucie Kovacikova, and their
children, Kristyna Gregorava and Nela Gregorova, are citizens of the Czech Republic. They
arrived in Canada and filed
claims for refugee protection on May 19, 2009.
[4]
The
Principal Applicant claims he experienced persecution in the Czech
Republic
because of his Roma ethnicity. His Personal Information Form (PIF) and oral
testimony disclose incidents of verbal and physical assaults by skinheads.
[5]
In
1996, he was kicked to the back of a streetcar and subjected to insults. He
received medical attention for his injuries at the local hospital and reported
the incident to police. He claims that police told him there was nothing they
could do for him since no one witnessed the assault.
[6]
More
recently in 2006, a group of skinheads shouted racial slurs at him and his
family traveling together on a streetcar. In 2008, he also sought treatment
from his family doctor for injuries sustained when he was thrown from another
streetcar. According to his testimony, he reported this incident to police who
laughed at him.
[7]
In
addition to the assaults, the Principal Applicant states that he has had
difficulty finding employment and been continuously laid off because of his
ethnic background. He reports being refused service at a bar and turned away
from nightclubs.
II. Decision
[8]
The
Board concluded that the Principal Applicant did not have a well founded fear
of persecution if returned to the Czech Republic. Although the
Applicants were discriminated against, and even harassed, as a result of their
Roma ethnicity, the incidents did not rise to the level of persecution. There
was no persuasive evidence of sustained or systematic violation of the
Applicant’s basic human rights demonstrative of a failure of state protection.
[9]
Moreover,
the Board found that there was adequate state protection available to the
Applicants. Since the Czech Republic is a democratic state,
there was a greater onus on the Applicants to establish that they had exhausted
all available courses of action. Local failures of effective policing, such as
being unable to stop the incidents, would not amount to a lack of state
protection, unless part of a broader pattern of the state’s inability or
refusal to provide protection.
[10]
The
Board noted that although there was evidence of increased skinhead attacks on
minority groups, the Czech Republic did not condone this
behaviour and was making efforts to correct its record of discrimination
against the Roma. Programs put in place by the Czech Republic
represented serious efforts to offer protection for the Roma people.
III. Issues
[11]
This
application raises two issues:
(a) Was
it reasonable for the Board to conclude that discrimination experienced by the
Applicants did not amount to persecution?
(b) Was
the Board’s assessment concerning the availability of state protection to the
Applicants in the Czech Republic reasonable?
IV. Standard of Review
[12]
The
distinction between discrimination and persecution is a question of mixed fact
and law reviewed on a standard of reasonableness (see Liang v Canada (Minister of
Citizenship and Immigration), 2008 FC 450, [2008] FCJ No 572 at paras
12-15). The same standard applies in the assessment of state protection (see Mendez
v Canada (Minister of
Citizenship and Immigration), 2008 FC 584, [2008] FCJ No 771 at paras
11-13).
[13]
As
articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47, reasonableness is “concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process” as well as “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
V. Analysis
Issue A: Was
it Reasonable for the Board to Conclude that Discrimination Experienced by the Applicants
did not Amount to Persecution?
[14]
Persecution
is understood as the “sustained or systematic violation of basic human rights
demonstrative of a failure of state protection” (Canada (Attorney General) v
Ward, [1993] 2 S.C.R. 689, [1993] 2 SCJ 74 at 733-734). This Court has
recognized that discriminatory treatment will not necessarily be “serious or
systematic enough to be characterized as persecution” (Sagharichi v Canada
(Minister of Employment and Immigration), 182 NR 398, 1993 CarswellNat 316
at para 3).
[15]
The
Applicants submit that the Board failed to properly assess the cumulative
effect of the discrimination they experienced before concluding that it did not
to amount to persecution. In addition, the Applicants contend that the Board
should have explicitly addressed conflicting documentary evidence.
[16]
The
Board is expected to assess the cumulative effects of discriminatory incidents
and explain why they do not amount to persecution (see Bledy et al v Canada
(Minister of Citizenship and Immigration), 2011 FC 210, 2011 CarswellNat
652 at para 31; Tetik v Canada (Minister of Citizenship
and Immigration), 2009 FC 1240, 86 Imm LR 154 at para 27). However, I am
satisfied by the Respondent’s submission that the Board met this expectation in
the present case. The Board considered the discrimination as a whole. It
stated that there were several incidents of physical and verbal assaults and
proceeded to list them, focusing attention on the most serious ones. These
incidents were balanced against evidence that the Applicant was not denied
medical treatment or prevented from bringing information to the attention of
the police. Indeed, the Board clarified its approach to assessing the
discriminatory incidents at paragraph 12 of its reasons stating that although
“the treatment the claimants received for being of Roma ethnicity must
have been difficult to go through, it does not, even cumulatively, amount to
persecution.”
[17]
Although
the Board did not explicitly mention the country documentation in its analysis
of persecution, it is evident from the remainder of the decision that this
material was considered. The Board acknowledged the historical discrimination
against Roma as well as increased incidents of skinhead attacks on Roma later
in the decision. This implies that evidence of the situation facing Roma in
the Czech
Republic
was considered as part of the Board’s overall assessment of the case. It was
also balanced against evidence of efforts on the part of the state to address
the problem.
[18]
In
distinguishing discrimination from persecution, the Court must be guided by Sagharichi, above,
where it was stated at paragraph 4 that it is the Board’s role to reach a conclusion
by proceeding with a careful analysis of the evidence adduced and a proper
balancing of the various elements, the intervention of the Court is unwarranted
unless that conclusion is capricious or unreasonable.
[19]
Having
balanced the cumulative effect of discrimination and the situation facing the
Roma in the Czech Republic, it was
reasonable for the Board to conclude that the Applicants experienced
discrimination but it was not sufficiently serious or systematic to amount to
persecution. The intervention of the Court is not warranted.
Issue B: Was
the Board’s Assessment Concerning the Availability of State Protection to the
Applicants in the Czech Republic Reasonable?
[20]
The
Applicants submit that the Board’s assessment concerning the availability of state
protection was unreasonable because it did not consider all of the evidence.
Specifically, the Applicants charge that the Board was selective in its
treatment of country documents. They point to evidence of ongoing
discrimination and negative perceptions among the police of Roma in the Czech Republic that was not
explicitly analyzed.
[21]
The
Applicants further submit that the Board failed to address their unsuccessful
attempts to seek protection, particularly evidence that police laughed at the
Principal Applicant in 2008 when he attempted to report an assault.
[22]
The
Respondent takes the position that the Board thoroughly considered all of this
evidence. The Board recognized discrimination faced by Roma generally and
recent attacks by extremists. It noted that the Czech Republic did not
condone recent attacks and was making serious efforts, through a variety of
programs aimed at improving police recruiting and assistance as well as
promoting social inclusion, to correct past discrimination. It recognized
conflicting evidence stating that “critics claim these programs do not go far
enough or are just superficial” but still found that “the preponderance of
evidence is that there are programs in effect and serious efforts are being
made.”
[23]
Democratic
governments are not expected to guarantee the protection of all citizens at all
times (Canada (Minister of Employment and Immigration) v Villafranca
(1992), 99 DLR (4th) 334, 150 NR 232 at 223; Kadenko v Canada (Minister of
Citizenship and Immigration), 124 FTR 160, 1996 CarswellNat 2216 at paras
4-5 (FCA)). In considering the evidence of ongoing discrimination as well as
efforts designed to assist the Roma, it was reasonable for the Board to weigh
this evidence and conclude there was state protection was available, however
imperfect.
[24]
Similarly,
local failures of state protection do not necessarily imply that state
protection is unavailable (Zhuravlev v Canada (Minister of
Citizenship and Immigration), [2000] 4 FC 3, 2000 Carswell 706 at
para 31). The Board mentioned that the Principal Applicant reported the
incidents to the police and there was no information that they were refused
protection. No witnesses were available to enable the police to investigate
the assault. The Board did not specifically refer to the police laughing at
him when he reported the second physical assault, but this would not undermine
the broader conclusion. The Applicants could have pursued the matter further
given the state-wide programs in place to assist the Roma.
[25]
While
the Applicants would have preferred the Board place greater emphasis on certain
evidence of ongoing discrimination and attempts to seek state protection, since
these were considered and perfection is not required, the Board’s conclusion
that state protection was available to the Applicants in the Czech Republic is
reasonable.
VI. Conclusion
[26]
The
Board reasonably concluded that the Applicants did not have a well founded fear
of persecution and state protection was available to them.
[27]
Accordingly,
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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