Date:
20130215
Docket:
IMM-5531-12
Citation:
2013 FC 166
Ottawa, Ontario,
February 15, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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MARIAN FERENC
MARIA PETOVA
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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 are common-law spouses of Roma ethnicity from the Slovak Republic. They suffered four confrontations with skinheads between 1999 and 2008, three
of them violent. The 2008 beating suffered by Mr. Ferenc was so severe that he
was incapacitated for several weeks following the attack and was left with
permanent facial scarring. The applicants reported the three violent attacks to
the police but obtained no assistance. In the case of the most serious attack,
even though there were witnesses who apparently called the police, the police
failed to question the witnesses and instead, at least initially, dismissed the
event as a situation of fighting between
Mr. Ferenc and his cousin (who was
also severely beaten by the skinheads). Following this occurrence, the
applicants gathered funds and came to Canada, where they made refugee claims,
alleging fear of persecution in Slovakia by reason of their Roma ethnicity.
[2]
In
a decision released May 11, 2012, the Refugee Protection Division of the
Immigration and Refugee Board [the RPD or the Board] found the applicants to be
neither Convention refugees nor persons in need of protection. The Board
accepted the applicants’ evidence as credible, but held that they had failed to
rebut the presumption of state protection in Slovakia. In this regard, the
Board noted that, despite the “overall situation of the Roma [being] a matter
of deep concern” (decision at para 20) and evidence of ongoing violence and
discrimination suffered by the Roma in Slovakia, the Slovak Republic is making
“serious efforts to address the problem of criminality and […] the police are
both willing and able to protect victims effectively in practice” (decision at
para 23). The Board additionally found that “the male [applicant had] furnished
no persuasive evidence to show that the police did not take effective steps to
investigate his case, or try to look for the perpetrators who were responsible
for his attack in 2008” (decision at para 31). Based on this finding and its
review of the police treatment of the other complaints that the applicants
made, the RPD concluded that the applicants did not make diligent efforts or
take reasonable steps in seeking state protection.
[3]
In
this application for judicial review, the applicants seek to have this Court
set aside the Board’s decision on the basis of three alleged errors:
a. The
unreasonableness of the RPD’s state protection analysis: the applicants argue
that the Board erred in relying on the efforts of the Slovakian government as
opposed to analysing the effectiveness of its ability to protect Roma citizens
and assert that the RPD’s reasons and the documentary evidence both indicate
that state protection for the Roma in Slovakia is ineffective;
b. The
unreasonableness of the Board’s conclusion that the applicants did not make
diligent efforts or take reasonable steps in seeking state protection in that
it ignores the applicants’ evidence regarding their experiences with the police
in Slovakia; and
c. The
failure of the Board to assess whether the discrimination the applicants
experienced amounts to persecution.
[4]
The
respondent, on the other hand, argues that the Board’s decision was reasonable
because there was evidence to support the conclusions reached. More
specifically, with respect to the first alleged error, the respondent argues
that the RPD applied the correct test and recognized that what is relevant to
the issue of state protection is the efficacy of the protection offered by the Slovakian
state as opposed to the mere efforts made by the government to address the
situation of the Roma. The respondent further argues that the evidence before
the Board regarding the efficacy of efforts made by the Slovakian state to
protect Roma is mixed, and, accordingly, that the Board's conclusion regarding
the adequacy of state protection is reasonable. In a similar fashion, the
respondent argues that evidence of the steps taken by the police in respect of
the applicants’ specific complaints is also mixed, indicating in some instances
that appropriate steps were taken, but indicating otherwise in other
situations. And, given this, the respondent asserts that the Board’s conclusion
regarding the applicants’ lack of diligence is reasonable. Finally, with
respect to the third alleged error, the respondent submits that because the
applicants did not argue that the discrimination they faced (as opposed to the
victimization and beatings they suffered) constituted persecution, there was no
need for the RPD to address the issue of whether any discrimination the
applicants encountered amounted to persecution.
[5]
As
is more fully discussed below, I have determined that the RPD’s conclusion
regarding the failure of the applicants to make diligent efforts to seek state
protection is unreasonable as it is unsupported by the evidence before the
Board that had been accepted as credible. As the Board’s state protection
finding rests in large extent on this conclusion, the decision must be set
aside. I also find there to have been flaws in the RPD’s reasoning underpinning
its conclusions drawn from the objective evidence regarding the situation in Slovakia. As a result of this conclusion, I need not address the applicant’s third
argument.
Was
the Board’s conclusion regarding the failure of the applicants to make
sufficient efforts to seek state protection reasonable?
[6]
Turning,
then, to the Board’s treatment of the applicants’ efforts to seek state
protection, it is necessary to briefly outline the evidence before the Board
regarding these efforts as well as the conclusions reached by the Board.
[7]
The
applicants claimed to have had four physical encounters with skinheads and to
have reported the three most serious of the assaults to the police. The first
assault involved Ms. Petrova and happened in 1999, when she was a teenager. She
claimed that she and other members of her band were en route to a concert when
they were chased by a group of 10-15 skinheads. She stated that a policeman saw
them being chased but merely told her and the others to run away. She claimed
that although they ran, the skinheads caught them and beat them up. She also
alleged that she and the others made a report to the police, but the officer
who took the report blamed the band manager for failing to take adequate steps
to protect the children. Ms. Petrova, however, conceded that she was not able
to give a description of the attackers to the police and had no idea who they
were. She testified that her parents followed up with the police, but nothing was
done to apprehend the attackers.
[8]
In
discussing this incident, the RPD concluded that the applicant did “not furnish
any persuasive evidence to show that the police […] did not effectively respond
to the complaint or did not effectively investigate her complaint about the
skinhead attack” (decision at para 33). The RPD did not outline the basis for
this determination. Rather, it merely appears in the decision after the Board
recounted the facts it found, and there is no explanation of how or why the determination
was reached.
[9]
While
the Board’s reasons on this point are not as fulsome as one might wish, given
the lack of information provided to the police regarding the identity of the
skinheads, the Board’s conclusion with respect to the adequacy of the police
investigation is nonetheless reasonable as it finds support in the evidence. In
short, the police had very little to investigate, as Ms. Petrova could not
provide a description of her attackers and there is no evidence that the
officer who ignored the situation was in a position to do so either. Thus, the
facts do not support the suggestion that there was an inadequate investigation
and the Board’s conclusion that there was no persuasive evidence that the
police did not effectively investigate Ms. Petrova’s complaint is reasonable.
Similar conclusions on the adequacy of investigations have been upheld by this
Court in circumstances like the present, where the police were provided with
limited information about attackers (see e.g. Rodriguez Osornio v Canada (Minister of Citizenship and Immigration), 2011 FC 684 at para 19; Velazquez Hernandez
v Canada (Minister of Citizenship and Immigration), 2011 FC 5 at para 10).
Therefore, the Board’s conclusion on this point is reasonable.
[10]
The
same, however, cannot be said of its conclusion regarding the initial police
response to the incident. It must be recalled that the RPD found the
applicants’ version of events to be credible and, thus, it must be taken as
established that a Slovakian policeman saw several Roma teenagers being chased
by a group of skinheads. Furthermore, it must also be taken as established
that, as opposed to intervening to stop the situation, the police officer told
the teenagers to run faster. If this is in fact what happened – and the RPD did
not question the veracity of Ms. Petrova’s testimony on this point – the police
response was far from adequate and, indeed, demonstrates a cavalier attitude
and unwillingness to protect the teenagers.
[11]
The
applicants claimed that the second attack occurred in 2006, on a bus. They were
accosted by a group of skinheads, who insulted them, pushed Ms. Petrova and
then beat up Mr. Ferenc. Mr. Ferenc testified that he reported the incident to
the police, and followed up two or three times, but nothing transpired. He
offered his opinion that when a gypsy makes the report, the police throw it in
the garbage. In discussing this incident, the RPD merely noted that it found
“no persuasive evidence to back up the male claimant's allegation” regarding
the police throwing out complaints from those of Roma ethnicity (decision at
para 34). This finding is not unreasonable as the applicant’s bald statement is
a mere expression of opinion and need not have been taken as persuasive by the
Board. The Board provided no further analysis of this incident.
[12]
The
third skinhead attack occurred in 2007, when Ms. Petrova went to a nightclub
with some male coworkers, and was grabbed by a skinhead after he insulted her.
She did not report this incident to the police. The RPD did not discuss this
incident in the decision, other than noting that it occurred. In my view,
nothing turns on this incident as it was not reported.
[13]
The
final attack took place in 2008, and involved a situation where Mr. Ferenc and
his cousin were attacked and savagely beaten by a group of skinheads, who hit
Mr. Ferenc with a baseball bat. He testified that his injuries were so severe
that he was incapacitated for a month, had to use a straw to eat, required
several stitches and has permanent scars. He further stated in his testimony
that when the attack was occurring, one of the residents close by shouted out
that they were calling the police, that the city police arrived at the scene
shortly thereafter, and the skinheads then fled. He further testified that as
soon as they arrived, the police accused him and his cousin of having had a
brawl amongst themselves, despite the fact that the police had been called and
Mr. Ferenc and his cousin repeatedly told them that they had been set upon by a
group of skinheads. The police then left.
[14]
Mr.
Ferenc said that he and his cousin made their way to the hospital, for
treatment. While at the hospital, the medical staff called the state police.
Mr. Frank claims that, once again, they refused to take a report and instead
stated that they believed that Mr. Ferenc and his cousin had beaten each other.
Despite this, neither of them was charged.
[15]
The
following day, Mr. Ferenc’s parents made a report to the police, and a few days
later the police came to Mr. Ferenc’s home to take a statement. Mr. Ferenc
testified that he overheard one of the policeman say to the other that they did
not believe Mr. Ferenc had been attacked by skinheads, because none were in the
area. He further claimed that he went to the police station a month and half later
and learned that nothing had been done to advance the investigation. He
testified went back to the police station shortly before he left the Slovak
Republic in 2009, to attempt to obtain a copy of his police report, but was not
able to do so.
[16]
Once
again, the RPD accepted this testimony as completely credible. In dealing with
this incident, the Board member stated only as follows “I find that the male
claimant has furnished no persuasive evidence to show that the police did not
take effective steps to investigate his case, or try to look for the
perpetrators who were responsible for his attack in 2008” (decision at para
31).
[17]
This
finding, like the earlier one applicable to Ms. Petrova, is unsupported by the
evidence before the Board, which it accepted as being credible. The applicant's
version of events, and, in particular, his description of what occurred when
the city police first arrived, demonstrates a complete failure to take
effective steps to investigate. The police did not believe the applicant and
did not question potential witnesses, who might have been able to provide a
description. It is hard to imagine a less effective response.
[18]
After
reviewing these events, the Board member concluded as follows:
I find, in the particular circumstances of this
case, that the male and female claimant did not make diligent efforts, nor did
they take all reasonable steps in seeking the protection of the authorities
when they were attacked by skinheads in the Slovak Republic. I find that the
claimants have not produced sufficient reliable, relevant and probative
evidence to convince me that adequate state protection is not available in
practice to ethnic Roma who are targeted by racist and neo-Nazi skinheads in
the Slovak Republic. I find, therefore, that the claimants, in the particular
circumstances of this case, have not rebutted the presumption of adequate state
protection in the Slovak Republic with clear and convincing evidence. I am not
persuaded that the Slovak Republic would not be reasonably forthcoming with
adequate state protection, should the claimant seek it.
[19]
As
is evident from the preceding quotation, Board’s assessment of the adequacy of
the applicants’ efforts to seek state protection was one of the principal bases
upon which the RPD dismissed their claims. (The other basis involved
consideration of documentary evidence.)
[20]
The
case law recognizes that paragraph 18.1(4)(d) of the Federal Courts Act,
RSC 1985, c F-7 codifies the grounds upon which a decision may be set aside if
a tribunal makes an erroneous factual finding (Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 46). That provision stipulates that this
Court may set aside a tribunal’s decision if it is satisfied that the tribunal
“based its decision or order on an erroneous finding of fact it made in a
perverse or capricious manner or without regard to the material before it”. A finding
will be made without regard to the material before the tribunal if there is no
evidence before the tribunal to support it (see e.g. Canadian Union of Postal Workers v Healy,
2003 FCA 380 at para 25, [2003] FCJ No 1517). And,
such a finding will warrant intervention by this Court if the tribunal’s
decision is based on it (see e.g. Rohm
& Haas Canada Limited v Canada (Anti-Dumping Tribunal) (1978), 22 NR
175, [1978] FCJ No 522 at para 5 [Rohm & Haas]; Buttar v Canada (Minister of Citizenship and Immigration), 2006 FC 1281 at para 12, [2006] FCJ
No 1607).
[21]
For
the reasons noted, the evidence before the RPD does not support the Board’s
conclusion that the applicants have not been diligent in their efforts to seek
state protection. And, this finding was central to the Board’s determination.
Accordingly, the Board’s decision is unreasonable and warrants intervention by
this Court. Simply put, the Board cannot accept the applicant’s version of
events, which demonstrates that they made reasonable efforts to seek police
protection and that the police acted unreasonably, and then reach a finding
that the efforts were not diligent or that the claimants failed to produce
persuasive evidence. If in referring to the lack of persuasive evidence the
Board meant that it did not believe the applicants, then it was incumbent on it
to conduct a credibility analysis and set out its reasons for not accepting the
applicants’ testimony.
[22]
While
this determination is sufficient to dispose of this application, I also note
that the Board’s treatment of the country documentation is unsatisfactory and
largely unintelligible. In this regard, the reasons reflect a litany of
problems in respect of the adequacy of state protection for the Roma in the
Slovak Republic, note some of the efforts made by the Slovakian authorities –
without commenting on the efficacy of these efforts – and then somehow conclude
that there is “adequate state protection in the Slovak Republic for victims of
crime” (decision at para 23). This Court has repeatedly held that evidence of
ineffective efforts on the part of a state to provide protection will not
support a finding of adequate state protection being available (see e.g. Hercegi
v Canada (Minister of Citizenship and Immigration), 2012 FC 250 at para 5; Bors
v Canada (Minister of Citizenship and Immigration), 2010 FC 1004 at paras
60-63). Rather, what is required is that the efforts bear some fruit in order
to be held to be effective.
[23]
It
may well be that the mixed evidence before the Board regarding the efficacy of
the efforts of the Slovakian state – as opposed to the mere fact of making
efforts – might have afforded the RPD a basis for concluding that adequate
state protection exists in the Slovakian Republic for those of Roma ethnicity.
The problem with the decision is that the RPD did not address this issue or
analyze the efficacy of the efforts of the Slovakian state.
[24]
For
these reasons, the decision must be set aside.
[25]
No
question for certification was posed under section 74 of the Immigration and
Refugee Protection Act, SC 2001, c 27 and none arises in this case as my
decision turns on the facts and reasoning adopted by the Board.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review of the RPD’s decision is granted;
2.
The
decision of the Board is remitted to the RPD for re-determination by a
differently constituted panel of the Board;
3.
No
question of general importance is certified; and
4.
There
is no order as to costs.
"Mary J.L.
Gleason"
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