Date:
20130822
Docket:
IMM-10961-12
Citation:
2013 FC 892
Ottawa, Ontario,
August 22, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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GEJZA CONKA, NADEZDA CONKOVA,
STELA CONKOVA, AND OTILIA CONKOVA
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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 the decision of a member of the
Refugee Protection Division of the Immigration and Refugee Protection Board
[the Board], pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act]. The Board dismissed the
Applicants’ claim for refugee protection, concluding that they were not
convention refugees or persons in need of protection under sections 96 and 97
of the Act.
I. Background
[2]
The
Applicants are a family of Slovakian citizens, consisting of a father [the
Principal Applicant, or PA], his wife, their daughter and their son. They are
of Roma ethnicity.
[3]
According
to the PA’s Personal Information Form [PIF] narrative filed on September 19,
2011, the Applicants have faced discrimination and racism throughout their
lives in Slovakia. The key instances of alleged persecution are:
•
In
2006, the PA’s wife and children were refused medical care and the PA’s wife
was told to sterilize herself so that she would not have Roma children in the
future;
•
The
Roma colony in which the Applicants lived was attacked every Friday. Rocks were
thrown into their windows and they were verbally abused;
•
The
Applicants were refused access to public transportation and attacked based on
their Roma ethnicity;
•
In
2005, when the PA was employed as a construction worker, his coworkers started
bullying him, writing racial taunts on his locker and changing the water
temperature when he was showering; and
•
The
Applicants lived on the outskirts of a forest and could not go into the city or
restaurants because of the abuse they faced.
[4]
As
a result of this persecution, the Applicants fled to Canada, claiming refugee
status on August 25, 2011.
[5]
In
his testimony before the Board, the PA stated that he had never been physically
attacked nor had his home been attacked or suffered damage, as it was somewhat
protected within a Roma colony. The PA further testified that he had never had
any personal contact with the police for any reason.
[6]
The
Board’s decision notes that the claims in this case were joined pursuant to what
is now section 55(1) of the Refugee Protection Division Rules,
SOR/2012-256.
[7]
The
determinative issue for the Board in denying the Applicants’ claim was state
protection. The Board held that the Applicants had not rebutted the
presumption of state protection.
[8]
At
the outset of its reasons, the Board describes discrimination testified to by
the PA at the Board’s hearing, not the discrimination referred to in the PA’s
PIF narrative. In other words, the Board describes the verbal abuse and the
general attacks on the Applicants’ settlement, not damage to the Applicants’
home or any attacks against the PA. Consequently, the Board finds that the
racism and discrimination against the claimants is not of the nature that would
require state protection.
[9]
Despite
this finding, the Board continues to find that state protection, in the form of
police services and oversight agencies, was available to the Applicants. It
relies on a brief review of the documentary evidence to do so.
[10]
The
Board disposed of the claims of the PA and the PA’s wife and children on the
basis that there was no substantial difference between them.
II. Issues
[11]
The
issues raised in the present application are as follows:
A. Was
it unreasonable for the Board to dispose of the Applicants’ wife’s claims on
the same grounds as for the PA?
B. Was the
Board’s finding on state protection unreasonable?
III. Standard of review
[12]
The
Board’s finding with regards to state protection is reviewable on the standard
of reasonableness (Khosa v Canada (Minister of Citizenship &
Immigration), 2009 SCC 12 at paras 46, 59; Dunsmuir v New Brunswick,
2008 SCC 9 at paras 47-48, 51 [Dunsmuir]).
[13]
Likewise,
the question of whether the evidence underlying the Applicants’ claims is
factually similar is a question of fact, and entitles the Board to deference on
the standard of reasonableness (Dunsmuir, above, at para 53).
[14]
The
Applicants also allege that the Board made a reviewable error in failing to
mention certain aspects of the PA’s PIF narrative. Adequacy of reasons does not
attract an independent standard of review, rather, it should be considered as
part of the reasonableness of the decision as a whole (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 14).
IV. Analysis
A. Was
it Unreasonable for the Board to Dispose of the Applicants’ Claims on the Same Grounds?
[15]
The
Applicants argue that the Board erred in failing to differentiate the PA’s wife’s
claims from those of her husband, which violates her right to a fair hearing
and sections 7 and 15 of the Charter, based on gender discrimination.
[16]
This
position ignores the fact that the Board did refer to and consider the
Applicants’ difficulties in seeking medical services, as set out in paragraph 5
of the Board’s decision.
[17]
Further,
the Board held that there was adequate state protection available to the
Applicants. If reasonable as a finding, it renders the other issues before the
Board moot.
B. Was the Board’s Finding on State
Protection Unreasonable?
[18]
The
Applicants argue that the Board failed to note information contained in the
PA’s PIF narrative in the decision and that the Board’s state protection finding
was flawed as a result.
[19]
With
regards to the omission of the evidence of physical attacks in the PA’s PIF
narrative, the Board need not address all the evidence in coming to its
decision. However, a requirement to explicitly consider evidence arises
proportionately to the importance of that evidence to the determination of the
issues, as per
Gondi v Canada (Minister of Citizenship and Immigration), 2005 FC 433 at para
16:
It is settled law that the board is presumed to have
had regard to all of the documents before it and it is not required to refer to
every piece of evidence and to explain how it dealt with it: Hassan v Canada
(Minister of Employment and Immigration) (1992), 147 NR 317 (FCA). However,
the need to refer to and analyse specific evidence increases with the
importance of the evidence: Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35 (TD).
[20]
Evidence
of physical attacks is very relevant to the question of whether state protection
is needed. However, it can be inferred from a review of the transcript that the
Board was justified in not mentioning the incidents described in the PIF
narrative. On page 221 of the record, the following dialogue from the Board
hearing takes place between the Board and the PA:
Q: Have you ever personally you (sic) or your wife
or children been physically attacked by any of these people?
A: It didn’t happen personally to us, but it
happened to our next door neighbours when they went to town and they were
attacked.
[21]
At
page 223, the Board asks a similar question:
Q: Okay. So I understand that you and your wife were
never physically attacked by any of these skinheads or other racists. That’s
correct, is it?
A: Yes, that’s correct.
[22]
It
is clear that the Board turned its mind to whether the Applicants were attacked
and gave the PA an opportunity to state that they were. While the Board could
have done more to explicitly question the PA on the discrepancy between his
testimony and his PIF narrative, it is apparent it addressed the fundamental
question (whether the PA was attacked) twice during the hearing, and addressed
his response (that he was not attacked) in its reasons. It does not therefore seem
reasonable to conclude that the Board ignored this evidence and thereby came to
an erroneous decision. The Board’s conclusion was reasonable.
[23]
The
Applicants also fail when it comes to the availability of state protection. The
test for this was stated in Carillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at para 30:
A claimant seeking to rebut the presumption of state
protection must adduce relevant, reliable and convincing evidence which
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate.
[24]
The
Board’s analysis of whether state protection is available is relatively meagre,
consisting of a brief review of documentary evidence of institutional efforts
by Slovakia to protect the Roma. It does not address the operational adequacy
of these efforts (EYMV
v Canada (Minister of Citizenship and Immigration), 2011 FC 1364).
[25]
However,
in Ward
v Canada (Minister of Citizenship and Immigration), [1993] 2 S.C.R. 689 at
para 49, Justice La Forest states that a claimant’s application will be
defeated where state protection might reasonably have been forthcoming, but the
applicant failed to seek it. In this case, the Applicants made no attempt to
seek state protection. While the Applicants did testify that they assumed such
attempts would be futile, that evidence is unconvincing, in the face of the
documentary evidence discussed by the Board. While it is not required for a
claimant to, as per Ward, above, at 48, “risk his or her life seeking
ineffective protection of a state, merely to demonstrate that ineffectiveness,”
the Applicants’ failure to take any steps to seek protection, given the lack of
violence directed at them, was not reasonable.
[26]
Accordingly,
while the Board’s review of the documentary evidence alone may not be
sufficient to demonstrate adequate state protection in Slovakia, the Applicants
did not attempt to seek police protection at all, and in not doing so, did
nothing to rebut the presumption of state protection.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Applicants application for judicial review is dismissed;
2.
No
question is to be certified.
“Michael D. Manson”
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