Date:
20130830
Docket:
IMM-9782-12
Citation:
2013 FC 929
Ottawa, Ontario,
August 30, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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TEREZIA KAKUROVA, SABINA
KAKUROVA, MARTIN KAKURA, MARTINA KAKUROVA
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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 August 28, 2012 decision of the
Refugee Protection Division of the Immigration and Refugee Board [the RPD or
Board] finding the applicants to be neither Convention refugees nor persons in
need of protection under sections 96 or 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA].
[2]
The
applicants are Roma citizens of the Czech Republic who allege a history of
mistreatment and discrimination in that country. They claim to have left the Czech Republic in 2008 after they say they witnessed increasing violence. They claim to
fear, in particular, extremist skinheads.
[3]
The
RPD dismissed their claims for protection on the basis of credibility and state
protection.
[4]
In
terms of credibility, the Board found that the applicants had experienced
discrimination in the past but were embellishing what they allege had occurred
in order to bolster their claims. The RPD also noted that the applicants had
failed to make a claim for protection when they visited Spain on holidays approximately two years before they made their refugee claims. It
therefore found they lacked the subjective fear necessary to found a claim for
protection under section 96 of the IRPA.
[5]
In
terms of state protection, the Board noted that the evidence the applicants
offered regarding their own experiences in the Czech Republic was insufficient
to rebut the presumption of there being adequate state protection available to
them and that the objective country documentation before the Board likewise did
not establish that state protection is inadequate in the Czech Republic. On the latter point, the Board referred to several excerpts from the documentation,
which speak of ongoing discrimination faced by the Roma, but also noted several
instances of laws or actions taken by the Czech government aimed at bettering
the lot of its Romani citizens, noting that some of these had borne fruit. The
PRD thus concluded that the evidence on the availability of state protection
was mixed and, accordingly, determined that the applicants had not discharged
their onus of establishing that state protection would not be available to them
if they were to return to the Czech Republic.
[6]
In
this application, the applicants make three principal arguments.
[7]
First,
they argue that the Board erred in its credibility analysis because it
incorrectly relied on a discrepancy between the testimony of several of the
applicants and what was contained in the officer’s port of entry notes. The
applicants argue that it is unreasonable to use port of entry notes as the
basis for an adverse credibility determination, as port of entry notes may be
inaccurate and are not meant to be a fulsome rendition of the basis for a claim
for protection (relying in this regard on Neto v Canada (Minister of
Citizenship & Immigration), 2004 FC 565 [Neto]; Park v Canada
(Minister of Citizenship & Immigration), 2010 FC 1269, 196 ACWS (3d)
826 [Park]; and Zhong v Canada (Minister of Citizenship &
Immigration), 2009 FC 632, 350 FTR 43 [Zhong]).
[8]
Second,
they argue that the RPD’s treatment of their arguments regarding inadequate
medical care is unreasonable as the Board failed to consider whether they were
likely to be denied adequate care based on their ethnicity (which may
constitute a violation of section 97 of the IRPA as the Federal Court of Appeal
held in Covarrubias v Canada (Minister of Citizenship & Immigration),
2006 FCA 365, 354 NR 367).
[9]
Finally,
the applicants argue that the Board’s state protection finding was unreasonable
in two respects. They argue first that the Board erred in applying the wrong
test – focussing only on the efforts made by the Czech government to provide
protection to the Roma as opposed to the efficacy of such efforts. Second, they
allege that the Board’s conclusion on the availability of state protection is
unreasonable as the evidence overwhelmingly supports the conclusion that those
of Roma ethnicity face ongoing discrimination amounting to persecution or cruel
treatment in the Czech Republic and the Board failed to provide adequate
reasons for rejecting this evidence.
[10]
Each
of the errors the applicants allege the Board made is reviewable on the
reasonableness standard (Rahal v Canada (Minister of Citizenship &
Immigration), 2012 FC 319 at para 22, 213 ACWS (3d) 1003; Re Hinzman,
2007 FCA 171 at para 38, 282 DLR (4th) 413). As is discussed below, it is my
view that none of the impugned findings is unreasonable.
[11]
Insofar
as concerns the first argument, the Board did not rely on the discrepancy
between the port of entry notes and the applicants’ testimony to make an
adverse credibly determination. Indeed, at paragraph 28 of its decision, the
RPD specifically states that it is not making any such finding. Rather, the
Board grounded its adverse credibility determination on implausibilities in the
applicants’ version of events and on the discrepancies between their testimony
and the contents of their Personal Information Forms [PIFs], which are intended
to be a succinct but complete outline of the basis for protection claims. This
Court has frequently upheld adverse determinations made on similar grounds (see
e.g. Esteban Zeferino v Canada (Minister of Citizenship & Immigration),
2011 FC 456 at paras 31-32, 202 ACWS (3d) 147). Thus, the RPD did not commit
the first of the alleged errors and this case is distinguishable from Neto,
Park and Zhong relied on by the applicants.
[12]
As
for the second alleged error, contrary to what the applicants assert, the RPD
did engage with their argument that they would be afforded sub-standard
healthcare based on their ethnicity. The Board considered the evidence on this
point, which consisted of what the applicants claimed had occurred and the
portions of the objective documentation dealing with the availability of
adequate health care for the Roma in the Czech Republic. In terms of the former,
the RPD determined that the applicants had not established that they had
received sub-standard health care, which was reasonably open to the Board in
light of there being no probative evidence before it to support any such claim
and in light of the applicants’ failure to even mention the central facet of
their health care-related allegations in their PIFs.
[13]
The
Board then went on to consider whether the objective country documentation
established that the applicants would be likely to be denied adequate health
care due to their ethnicity if returned to the Czech Republic. It found that
the evidence did not demonstrate that this would likely occur as only a
relatively small percentage of the Czech Roma who were surveyed on the point
reported having been denied adequate health care for discriminatory reasons and
because the lower life expectancy of the Roma in that country could be
attributable to many factors, including unhealthy lifestyles.
[14]
This
conclusion was likewise reasonable as it finds some support in the evidence
that was before the Board (although there is also evidence pointing the other
way). Because there is evidence to support the RPD’s conclusion, it cannot be
said to be unreasonable as it is for the Board – and not for the Court in a
judicial review application conducted under the reasonableness standard – to
weigh the evidence and make factual determinations. More to the point, the
Board did not fail to consider their health care-related arguments, contrary to
what the applicants allege. Rather, it fully reviewed and dismissed them. Thus,
the second argument the applicants advance is without merit.
[15]
The
same may be said of their third ground advanced in support of this application
for judicial review. Contrary to what the applicants assert, the Board did not
apply the wrong test in conducting its state protection analysis and thus this
case is distinguishable from Koky v Canada (Minister of Citizenship &
Immigration), 2011 FC 1407, 209 ACWS (3d) 644, relied on by the applicants.
When its decision is read in entirety, it is clear that the Board considered
the efficacy of the efforts undertaken by the Czech Republic to assist the Roma
as opposed to the mere fact that it had passed laws or was making other
attempts to address discrimination faced by its Romani citizens. It citied
several incidents of prosecutions, programs and laws, noting that some progress
was being made to address the discrimination the Roma have faced in that
country. The RPD, therefore, applied the correct test and the first basis for
the challenge to the reasonableness of its state protection determination must
fail.
[16]
Similarly,
the Board’s conclusion regarding the availability of state protection is
reasonable. In Ward v Canada (Minister of Employment and Immigration),
[1993] 2 S.C.R. 689 [Ward] at p716, the Supreme Court of Canada noted that “the
international community was meant to be a forum of second resort for the
persecuted, a ‘surrogate’, approachable upon failure of local protection.”
Thus, a refugee claimant must demonstrate that his or her home state is unable
or unwilling to offer protection (Ward at pp718-19). Further, as Justice
Mainville (then of this Court) noted in Jimenez v Canada (Minister of
Citizenship and Immigration), 2010 FC 727 at para 4, 192 ACWS (3d) 595, the
RPD’s assessment of whether state protection can be said to exist “should not
be decided in a factual vacuum without regard to a refugee claimant’s personal
circumstances.”
[17]
In
this case, the last serious event alleged by applicants occurred 17 years ago.
In the intervening years, the applicants have not sought out the assistance of
the state, claiming that they did not believe it would be of any use. As the
Board noted, while the applicants may have lost faith in the police, this does
not equate to evidence of a failure of state protection. This is especially the
case given that it is not the Board’s duty to prove that state protection
exists; rather it is the applicants’ burden to establish that it does not. In
light of the lack of evidence of personalized risk alleged by the applicants,
and in the face of documentary evidence, that, while mixed, does in some part
support the existence of state protection for Roma in the Czech Republic, the
Board’s determination that the applicants had not established that state
protection was unavailable is reasonable.
[18]
Finally,
the Board’s reasoning in support of its conclusion on this point is adequate.
It undertook a fulsome assessment of the evidence before it and rendered a
decision that was within the range of permissible outcomes. I would in addition
note that, contrary to what the applicants assert, it is not necessary that the
RPD mention every piece of contrary evidence in a decision. If this ever was
the law (which I doubt), it certainly can no longer be said to be so in light
of numerous recent decisions from the Supreme Court of Canada, including Construction
Labour Relations v Driver Iron Inc, 2012 SCC 65, [2012] 3 S.C.R. 405 and Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 (see also my decision in Andrade v Canada
(Minister of Citizenship and Immigration), 2012 FC 1490, 224 ACWS (3d)
179). These cases firmly establish that it is not necessary for an
administrative tribunal to refer to all of the contrary evidence or to deal
with every argument advanced. To suggest otherwise would impose an impossible
burden on the Board: here, the record ran to approximately a thousand pages and
contained mixed evidence regarding the efficacy of the Czech Republic’s response to the plight of the Roma. It would be overwhelmingly burdensome
for the Board to specifically cite every point in the evidence that runs
contrary to its determinations. All it was required to do was to review the
evidence and reasonably ground its findings in the materials before it, which
it did.
[19]
This
application for judicial review must accordingly be dismissed. No question has
been proposed for certification under section 74 of the IRPA and none is
appropriate as I have applied settled law and my decision rests on the facts of
this application.
[19]
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. This
application for judicial review is dismissed;
2. No question
of general importance is certified under section 74 of the IRPA; and
3. There is no
order as to costs.
"Mary J.L.
Gleason"
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