Date:
20130905
Docket:
IMM-6542-12
Citation:
2013 FC 908
Ottawa, Ontario, September 5, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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DANA DAVIDOVA,
MIROSLAV DAVID,
DAGMAR DAVIDOVA
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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 under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] of a
decision of the Refugee Protection Division [RPD], dated June
4, 2012 denying the Applicants refugee protection.
I. Facts
[2]
The
Applicants are a family from a village near Ostrava, Koprivnice, which is populated
mostly by Roma. The principal Applicant is a single mother of three children,
who divorced from her husband in 1996 because of his gambling problem. She has
another daughter who remains in the Czech Republic and who tells her that the
situation is becoming worse. The principal Applicant’s daughter also has a
daughter [the principal Applicant’s granddaughter]; a Canadian citizen whose
medical condition and disability related needs form part of the factual and
legal basis of her mother’s claim.
[3]
Once,
in 1996, her husband was followed home by skinheads who broke into the
apartment and beat them. The police were called but the perpetrators were gone
when they arrived.
[4]
The
principal Applicant described other incidents where she was shoved by skinheads
who were verbally assaulting her when she was on the street, particularly when
she was bringing her children to and from school. She testified that she
attended the police 8 to 10 times to complain and that they took her statement
but did nothing else.
[5]
In
May 2008, when she was walking home, a group of skinheads assaulted her. She
sought medical care from a clinic but did not report the incident to the
police.
[6]
The
principal Applicant’s daughter was attending high school studying hotel
management and was once followed by two students who slapped her and spat on
her. She did not report the incident to the police but the principal Applicant
attended the school the following morning and spoke with the principal who
suspended the two students as well as the principal Applicant’s daughter in
order for the situation to calm down.
[7]
The
daughter continued to attend school for about three weeks after this but she
finally left in March or April 2008 because she was the only Roma in the class
and she was afraid of threats from other students. She indicated that she did
not feel comfortable leaving school and that she would assist the family as her
mother was the only one supporting them.
[8]
After
she stopped going to school, they decided to leave for Canada. They obtained passports on May 26, 2009. The principal Applicant’s son, who was a minor, continued
to attend Grade 7 until the end of the school year in June 2009. The principal
Applicant, her children and her daughter’s common law spouse departed by way of
Prague and arrived in Canada on July 12, 2009 and made a claim the following
day.
II. Decision
under review
[9]
The
RPD determined that the Applicants are neither Convention refugees nor persons
in need of protection.
[10]
The
RPD considered that the Czech Republic is a functioning democracy that benefits
from the presumption of state protection and that the Applicants needed to demonstrate
that they did more than merely showing that they went to see members of the
police force and that these attempts were unsuccessful. The RPD determined that
they did not rebut the presumption of state protection.
[11]
The
principal Applicant stated that she was verbally assaulted and shoved by
skinheads a number of times and that she attended the police station
approximately 8-10 times to complain but that the police would only take her
statement and did nothing else. However, the RPD concluded that there is
insufficient evidence showing that the police denied taking her reports.
[12]
In
May 2008, the principal Applicant was assaulted but did not provide
corroborating evidence showing that she attended a clinic to seek medical
treatment. The RPD, however, accepted that the incident happened. The RPD noted
that she was never able to identify the perpetrators of the crimes and
determined that based on the evidence provided, it cannot be established that
the police would have been unwilling to investigate the complaint had they been
provided with sufficient information. Therefore, it cannot be established that
state protection is inadequate. If the principal Applicant considered that the
police did not investigate properly the incident, she could have filed a
complaint against them.
[13]
The
principal Applicant explained that she was scared for her children and that it
would restrict their activities and her daughter stopped going to school. However,
the RPD noted that the family left more than a year after the May 2008
incident, as shown by their passports.
[14]
The
RPD determined that the Applicants failed to establish that they have taken all
reasonable steps to access state protection, as the Czech Republic is a
functioning democracy and it is making significant efforts to correct its
historical discrimination against the Roma.
[15]
The
RPD indicated that although no police report has been submitted, it did not draw
a negative inference but considered that the police’s inability to conduct an
investigation was due to poor identification.
[16]
The
RPD added that the evidence of the government’s efforts is mixed as the police
at occasions, discriminate against the Roma but, however, participates in
activities to foster better relations with younger Roma and more Romani police
officers are recruited since a recruitment campaign was launched in 2006.
[17]
Moreover,
the RPD reviewed evidence showing that there are a number of non-governmental
organizations [NGOs] in the Czech Republic that may provide help to the
Applicants, namely to address cases of misconduct by the police. Such
organizations would be of assistance to the Applicants.
[18]
The
RPD, therefore, concluded that the evidence demonstrates that the Czech Republic is making efforts to protect the Roma, which has resulted in operational
effectiveness.
[19]
The
RPD also considered the programs put in place by the government to support the
education of the Roma. It also noted that the principal Applicant’s children
were never denied the opportunity to attend school.
[20]
With
regards to the concerns raised by the principal Applicant’s granddaughter’s illness,
the RPD determined that the evidence shows that she has significant health
issues since her birth and that should the daughter experience discrimination
or inadequate delivery of healthcare, assistance would be available from NGOs.
Additionally, the Applicants could turn to the Public Defender of Rights who
has many problems brought to his attention.
III. Applicants’
submissions
[21]
The
Applicants argue that the RPD’s finding that state protection is adequate in the
Czech Republic is unreasonable as it is contrary to the evidence. The RPD
ignored key evidence presented by the principal Applicant in her testimony
regarding the fact that the police did not take notes with regards to her home
invasion by skinheads nor was she asked to go to the police station. The RPD
erred in ignoring her credible testimony with regards to state protection.
[22]
Moreover,
failure to provide personal documentation attesting to each allegation should
not by itself undermine the principal Applicant’s credibility unless there is
evidence contradicting the allegations. The RPD did not have credibility
concerns.
[23]
The
RPD committed an error in stating that it is unable to find that, based on the
evidence, the police in these circumstances were unwilling to assist the principal
Applicant if she were to have provided sufficient reliable and probative
evidence upon which they could investigate. The RPD made a finding based on
speculation as there is no evidence supporting the fact that the police was not
able to conduct an investigation because of poor identification. To the
contrary, the RPD had evidence on the record that pointed to other explanations
for the lack of police action and ignored it. The principal Applicant stated in
her Personal Information Form that the police have links with the skinheads. There
was evidence to the effect that there is institutional racism in the Czech Republic police and inadequate investigation of crimes against the Roma. In cases
where the police fail to investigate serious complaints of racial harassment or
hate crimes and where there is evidence of systemic discrimination in the police
force, the RPD should not infer good faith on the part of the police.
[24]
Moreover,
the test puts the burden of police protection on the shoulders of the principal
Applicant, to establish “reliable and probative” evidence for the police to act
upon. The tribunal then retrospectively puts itself in the position of deciding
whether the principal Applicant met this test. It is unreasonable to fault the
Applicants for the failure of the police to conduct an investigation.
[25]
The
Applicants submit that the fact that the state is making serious efforts is
irrelevant as the correct legal test to be applied is whether such efforts
resulted in operational effectiveness. The RPD committed an error in
considering the willingness of the police to help throughout the decision and
not whether they can and do provide protection to the Roma victims. The
Applicants provided evidence that despite the presence of police in Northern Bohemia, riots broke out in 2011 which shows that state protection has not reached
an operational level.
[26]
Furthermore,
the Applicants submit that the RPD made a number of errors regarding its
determination that the principal Applicant’s daughter would be able to access
adequate medical care for her child in the Czech Republic. The RPD erred by
considering that she could get assistance from NGOs that are tasked with
dealing with issues faced by the Roma community. The NGOs, which assist in
making human rights complaints for discrimination, do not demonstrate the
adequacy of state protection, in particular in accessing health care. The RPD
erred by collapsing state protection with NGOs’ support as NGOs may not replace
state protection and if NGOs are the only option for the daughter, it means
state protection is inadequate. The evidence does not demonstrate that services
of NGOs would result in a hospital being bound to address the incident of
discrimination. There was no evidence that the services provided by the NGOs
would result in incidents of discrimination not being repeated.
[27]
In
addition to this, the RPD erred in concluding that the principal Applicant’s granddaughter
would get appropriate medical support in main city centres as it disregards the
evidence submitted by the Applicants that medical treatment is unaffordable and
employment is inaccessible to them. Since the nature of the health care system
was necessary in part to determine whether the principal Applicant’s fear was
objectively reasonable. The RPD erred in presuming that health care would be
provided because there was insufficient evidence presented by the Applicants to
demonstrate that it would not. The presumption of state protection does not
include a presumption that a particular state provides publicly funded health
care. Whether the principal Applicant would be able to pay for specialized
health care and whether she would be required to pay for those services does
not appear to figure in the finding on the health care issue at all.
[28]
Moreover,
the Applicants argue that the RPD was precluded from determining that state
protection was adequate with regards to the health care aspect of their claim.
Having expressed concerns at the hearing regarding the sufficiency of evidence
on this issue, the Member was required to at a minimum address how this
evidentiary problem was resolved in coming to a decision on the health care
issue.
[29]
Finally,
the Applicants submit that the exemption in subparagraph 97(1)(b)(iv) of
the IRPA does not apply to the aspect of the claim regarding the principal Applicant’s
granddaughter’s health care issue as the RPD determined that they were
discriminated against on the basis of a Convention ground.
[30]
The
principal Applicant submits, alternatively that if subparagraph 97(1)(b)(iv)
of the IRPA does apply to this aspect of the claim, the RPD’s determination is
erroneous as the principal Applicant’s claim falls within the narrow range of
claims contemplated as widespread discrimination against the Roma in the Czech
Republic cannot be considered a “legitimate” reason for the government’s
inability to provide health care.
IV. Respondent’s
submissions
[31]
The
Respondent first submits that the RPD did consider the effectiveness of state
protection before considering that the Applicants had failed to rebut the
presumption of adequate state protection. The RPD considered the mixed evidence
and operational effectiveness.
[32]
Second,
the Respondent argues that the Applicants bear the onus of rebutting the
presumption of state protection in the Czech Republic. The Applicants have not
established that state protection is inadequate.
[33]
Third,
the Applicants’ efforts to seek state protection were inadequate. The Czech Republic is a functioning parliamentary democracy. Consequently, the Applicants must
do more than simply allege that the police did not do enough to help them. The
RPD reasonably determined that the Applicants had not made all reasonable
efforts to seek state protection before seeking it internationally as there are
a number of ways to seek redress for police inaction, including the possibility
for the Ministry of the Interior and the Public Defender to investigate
complaints against the police. Moreover, the principal Applicant did not seek
help from agencies other than the police, which can provide help.
[34]
The
Respondent further submits that the police were unable to investigate the principal
Applicant’s complaint as the identity of the skinheads, who assaulted her in
May 2008, was unknown, making it difficult to conduct an investigation and
determined that it could, therefore, not find on the basis of the evidence that
the police were unwilling to act. The same reasoning stands with regards to the
home invasion. The case law is to the effect that such impossibility to conduct
an investigation does not amount to inadequate state protection.
[35]
Fourth,
with regards to the home invasion, the Respondent submits that the RPD did not
ignore the evidence regarding the adequacy of state protection that the principal
Applicant provided about the home invasion. The RPD is not required to mention
each piece of evidence in its reasons as it is presumed to have taken into
consideration all of the evidence. As for the principal Applicant’s allegation
that the RPD did not consider the incident when the police did not take notes,
the Respondent submits that it is sufficient for the RPD to consider whether
the police responded to the call about the home invasion based on the
information they had when assessing the adequacy of state protection. Moreover,
there are a number of agencies available to the Applicants to seek redress for
police inaction, which were not accessed.
[36]
The
Respondent finally submits that the RPD did consider the evidence in relation
to the Canadian born child. The RPD reasonably determined that although the
child’s return to the Czech Republic raises some concerns, there is insufficient
evidence showing that the state would not provide adequate health care.
Contrary to what is alleged by the principal Applicant, state protection can be
available from state-run agencies such as NGOs. The RPD also noted the possible
assistance from the Public Defender and the Secretariat of the National
Minorities Council which are not NGOs. The Respondent also argues that the
Applicants did not meet their onus under subparagraph 97(1)(b)(iv) of
the IRPA as the lack of medical care in the Czech Republic will not support a
claim for refugee protection, though it may well constitute undue hardship in
the humanitarian and compassionate context. Inability to pay for medical care,
without more, will not support a claim for protection. Proof on a balance of
probabilities that care will be denied on a discriminatory ground is necessary
and it is lacking in the present case.
V. Parties’
supplementary written arguments
[37]
At
the hearing, this Court directed the parties to produce to the Court
supplementary written submissions on the health care issue of the Applicant’s
granddaughter. The Applicants’ additional written submissions were filed on
July 7, 2013, and put forward the argument that RPD has made findings
concerning the fear of discrimination in health care without regard to the
evidence submitted, more specifically concerning the insufficient evidence on
the health care issue and the relevance of NGOs in assessing state protection.
[38]
In
its supplementary written submissions, filed on July 12, 2013, the Respondent
argued that the RPD decision in question was reasonable. Relying on the limited
material with which it had been presented, the RPD rightly followed
jurisprudence on subparagraph 97(1)(b)(iv). The Respondent argues
that the Applicants failed to meet the onus under this subparagraph and that
they were free to litigate this issue under another forum, i.e. seek
humanitarian and compassionate relief.
[39]
The
Applicants replied to the Respondent’s submissions on July 24, 2013. In
addition to specifying their claims, they indicated that the subparagraph
97(1)(b)(iv) exclusion clause does not apply to this health care issue,
as it was a component of the Applicants’ refugee claim. The Respondent did not
reply to the Applicants’ supplementary written arguments.
VI. Issue
1. Did the RPD
make an error in its state protection analysis?
VII. Standard
of review
[40]
State
protection findings are to be reviewed under the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
VIII. Analysis
[41]
The
Applicants argue that they have demonstrated that state protection is not
efficient as the police did not appropriately respond to their complaints.
[42]
As
stated by the Supreme Court in Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, 20 Imm LR (2d) 85, a state is
presumed to be able to protect its citizens. The RPD’s determination that the Czech Republic is a democratic state, presumed to be capable of protecting its citizens is
reasonable. Indeed, the RPD reviewed the mixed evidence and concluded that the Czech Republic provides adequate protection to the Roma citizens.
[43]
It is a well-established law that state
protection does not have to be perfect and a state is presumed to protect its
nationals unless the contrary can be shown. In Canada (Minister of Employment and Immigration) v Villafranca, (1992) 18 Imm LR (2d) 130, 99 DLR (4th) 334,
the Federal Court of Appeal suggested that protection need not be perfect:
No government that makes any claim to democratic values or
protection of human rights can guarantee the protection of all of its citizens
at all times. Thus it is not enough for a claimant merely to show that his
government has not always been effective at protecting persons in his
particular situation. Terrorism in the name of one warped ideology or another
is a scourge afflicting many societies today; its victims, however much they
may merit our sympathy, do not become Convention refugees simply because their
governments have been unable to suppress the evil. … where a state is in
effective control of its territory, has military, police and civil authority in
place, and makes serious efforts to protect its citizens from terrorist
activities, the mere fact that it is not always successful at doing so will not
be enough to justify a claim that the victims of terrorism are unable to avail
themselves of such protection.
[44]
Therefore,
the fact
that a government has not always succeeded in protecting people in the
situation of a particular refugee claimant is not sufficient to establish that
state protection is not available to the claimant in his or her home country.
In the present case, it has not been possible for the principal Applicant to give
any information leading to the identification of the perpetrators of the crimes
for any of the incidents. Therefore, had the authorities been provided with
additional information, they would have been in a position to investigate the
matters. The RPD’s state protection finding on this point is therefore
reasonable.
[45]
However,
the RPD committed an error in its analysis of whether the Applicant’s granddaughter,
who is seriously ill, would be able to access appropriate state protection.
[46]
First,
the RPD acknowledged the fact that there is insufficient evidence regarding the
Czech Republic’s capacity and willingness to provide medical treatments to a seriously
ill Roma child and then determined that state protection would, however, be
available to the principal Applicant’s daughter should she face discrimination
in receiving health care for her child, as a number of NGOs would be of
assistance to them.
[47]
The
availability of adequate health care for the principal Applicant’s granddaughter,
or lack thereof, is a serious issue that warrants extensive consideration by
the RPD. Whether it is considered that the principal Applicant’s case should be
examined under section 96 or subparagraph 97(1)(b)(iv) of the IRPA, the
question of whether the principal Applicant’s granddaughter would receive
prompt and adequate medical support should her health condition require it and
whether health care is publicly funded in the Czech Republic, needs to be
looked at in greater detail by the RPD as it raises serious concerns.
Therefore, a detailed review of the available evidence is necessary to make the
appropriate determination. Indeed, it should be borne in mind that the principal
Applicant’s granddaughter is a Canadian citizen and her right to life and
security is protected by section 7 of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[48]
Second,
in its state protection analysis, the RPD committed an error in determining
that NGOs would provide appropriate protection to the principal Applicant’s granddaughter.
It considered that adequate protection would be provided by a number of NGOs in
the Czech Republic and made the following determination:
“While
I appreciate that these are not government bodies, they are partially funded by
the government in order to ensure operational effectiveness of legislation that
has been enacted. I find that should the PC’s daughter experience
discrimination or inadequate delivery of healthcare for her daughter that there
is assistance available to her from NGO’s who have mandates to deal with issues
faced by the Roma community and could be helpful in providing assistance to
ensure sufficient care is provided to her daughter, similar to that of the
catholic Children’s Aid Hamilton, who have assisted her while in Canada.
Additionally, the claimants could turn to the Public Defender of Rights who has
many problems brought to his attention, including people in economic hardship
such as those asking for his assistance in finding housing. Given the
seriousness of the PC’s daughter’s child’s illness, there is no evidence to
show that the Public Defender would not assist her in her particular
circumstances were she to experience difficulties. Rather the evidence shows
that the Public Defender has repeatedly dealt with cases of hardship and
inquired into the practices of Municipal authorities such as those of public
health, employment and housing centers. They could also turn to the Secretariat
of the National Minorities Council for assistance should the need arise.”
[49]
A
reading of the RPD’s finding shows that it considered the main source of
protection to be the NGOs providing assistance to the Roma population in the Czech Republic. Indeed, the RPD first extensively discussed the activities of a number of
NGOs that ensure the effective implementation of anti-discrimination
legislation enacted by the government. It then clearly concluded that they
consist in the first mean by which to obtain proper protection, should the principal
Applicant’s daughter experience discrimination when trying to access medical treatment
for her child’s serious illness. Although the RPD mentioned that the Public
Defender of Rights and the Secretariat of the National Minorities Council may
be able to assist, it is clear that in the RPD’s reasoning, the NGOs that were
put in place to ensure compliance with the anti-discrimination laws consisted
in the main body that would provide protection to the principal Applicant’s granddaughter.
[50]
However,
there is extensive case law supporting the proposition that non-state actors,
which include NGOs, may not replace the protection that should primarily be
provided by the state (see Dominguez Hernandez v
Canada (Minister of Citizenship and Immigration), 2007 FC 1211 at para 23, 164 ACWS (3d) 842; Thakur v
Canada (Minister of Employment and Immigration), [1993] FCJ No 600; Molnar v Canada (Minister of Citizenship and Immigration), 2002 CFPI 1081 at paras 24-30; Balogh v Canada (Minister of Citizenship and Immigration),
2002 FCT 809 at para 44, 22 Imm LR (3d) 93). Moreover, as stated by this Court,
“it is exceedingly difficult,
from an evidentiary standpoint, to determine whether a non-governmental
organization can be a surrogate for the state to provide
protection” (Aurelien v Canada (Minister of Citizenship and Immigration),
2013 FC 707 at para 17, [2013] FCJ No 752).
[51]
It is necessary for the RPD’s decision to stand, that its
determination that the young daughter would be protected from discrimination
resulting in denial of medical treatment for her serious illness based on the
availability of protection by a state actor. Such is not the case in the RPD’s
analysis, as it focused on the assistance that can be provided by NGOs. It is
unreasonable to conclude that the availability of NGOs assisting the Roma
population amounts to adequate state protection as it is highly unlikely that
those organizations would be able to make arrangements for the principal Applicant’s
granddaughter to receive prompt medical assistance in a context of emergency.
[52]
For all of these reasons, the decision needs to be sent back for
reconsideration but only for the state protection determination concerning the
young daughter which is unreasonable. As noted at paragraphs 42 to 44, the
remaining findings on state protection are reasonable. Since the RPD member
that dealt with this application is knowledgeable about the facts and the
issues of the case concerning the young daughter, it should be sent back to
that same member. The reasons rendered concerning the young daughter shall be
helpful to the RPD.
[53]
The parties were invited to submit
questions for certification but none were proposed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is granted in part.
2.
The
RPD’s decision concerning the young daughter’s state protection finding is set
aside and the matter is referred back to the same RPD panel for a new
determination.
3.
No
question is certified.
“Simon Noël”
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