Docket:
IMM-6327-12
Citation: 2014 FC 115
Ottawa, Ontario, January 31, 2014
PRESENT: The Honourable Mr. Justice O'Keefe
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BETWEEN:
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LESLAW DAWIDOWICZ
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DAWIDOWICZ DAWID
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(a.k.a. DAWID MOJZESZ DAWIDOWICZ)
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DANUTA DAWIDOWICZ
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MIRANDA DAWIDOWICZ
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ANDRZEJ DAWIDOWICZ
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KLAUDINA JULIA MIRGA
(a.k.a. KLAUDYNA JULIA MIRGA)
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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’ claims for refugee protection
were denied by the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the Board). They now apply for judicial review of that
decision pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act].
[2]
The applicants seek an order setting aside the
negative decision and returning the matter to a different panel of the Board
for redetermination.
Background
[3]
The applicants are a Roma family of three
generations from Poland. They arrived in Canada on April 15, 2011 and they
asked for refugee protection shortly thereafter. All ten claims relied
primarily on the narrative of the father/grandfather, Leslaw Dawidowicz (the
principal applicant).
Decision
[4]
The Board denied their claims by a decision
dated May 23, 2012.
[5]
The Board began by setting out the applicants’
allegations. The applicants feared violence at the hands of skinheads and
discrimination amounting to persecution. The principal applicant recounted many
incidents to support the claims, including some violent assaults. Their efforts
to seek protection have met with mixed results: sometimes the police would do
nothing; one time the police arrested their attackers; another time the police
detained them instead.
[6]
State protection was the determinative issue and
the Board said at paragraph 8 that the issue was “whether Polish authorities
can be reasonably expected to provide the claimants with serious efforts at
protection if they were to return to Poland, and not whether those authorities
can be reasonably expected to provide the claimants with de facto
effective or de facto guaranteed protection.” Further, clear and
convincing evidence would be required since Poland is a parliamentary
democracy.
[7]
Here, the Board found that the applicants had
not met that burden. Although local police had failed the applicants on
occasion, the Board said that such failures do not amount to a lack of state
protection unless they are a symptom of the state’s broader inability to
protect. Further, the Board found that Poland itself was not an agent of
persecution and that it is combating discrimination and offering sufficient
protection that the applicants’ fears are not well-founded.
[8]
The Board then went on to explain its findings
by quoting from a number of sources and it concluded that state protection
mechanisms exist and are available for ethnic minorities. For that reason, the
applicants’ claims failed under both section 96 and subsection 97(1) of the
Act.
Application for Judicial Review
[9]
All ten claimants applied for judicial review.
However, four of them (Klaudiusz Dawidowicz, Kornela Klaudia Kowalska, Chanel
Irena Kowalsk and Juliano Gabriel Kowalski) have since filed a notice of discontinuance.
Issues
[10]
The applicants submit two issues for my
consideration:
1. Did the Board err by failing to reasonably
assess the evidence as a whole and not having regard for the totality of the
evidence?
2. Did the Board err in the definition and
assessment of persecution and state protection?
[11]
The respondent replies that the Board’s finding
on state protection is reasonable.
[12]
I would rephrase the issues as follows:
1. What
is the standard of review?
2. Did
the Board misunderstand the tests for persecution and state protection?
3. Was
the Board’s decision unreasonable?
Applicants’
Written Submissions
[13]
The applicants say that the standard of review
is reasonableness and that the decision was unreasonable.
[14]
First, the applicants note that the Board did
not say anything about the applicants’ credibility and should be assumed to
have accepted their stories, including those regarding the failure of the
police to act. Indeed, at the hearing, the Board took them straight to the
issues of state protection and discrimination versus persecution and asked very
few questions. The applicants submit that the short hearing was inconsistent
with a reasonable consideration of the issues and that suggests it was
unreasonable.
[15]
The applicants then say that the Board applied
the wrong test. In particular, they take issue with the Board’s statement at
paragraph 11 that the applicants “do not have a well-founded fear of
persecution because of the protections provided by the state and by the
European Union within Poland.” They suggest that the Board erred by stating
this as a causal relationship and for jumping into the state protection
analysis without ever assessing whether the cumulative acts of discrimination
amounted to persecution (see Munderere v Canada (Minister of Citizenship and
Immigration), 2008 FCA 84 at paragraph 42, 291 DLR (4th) 68; Hegedüs v
Canada (Minister of Citizenship and Immigration), 2011 FC 1366 at paragraph
2, [2011] FCJ No 1669 (QL); Bledy v Canada (Minister of Citizenship and
Immigration), 2011 FC 210 at paragraphs 35 and 36, 97 Imm LR (3d) 243; and
others).
[16]
The applicants also note that the Board
concluded its decision by citing Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa], and
saying that a denial of refugee protection was a reasonable outcome. The
applicants say that this is for the Court to determine and the Board was wrong
to try and anticipate a judicial review.
[17]
The applicants then go on to challenge the Board’s
state protection analysis and say it applied the wrong test by only requiring
“serious efforts to protect.” The applicants say that that is not the test.
Rather, the Board was required to look at the operational adequacy or actual
effectiveness of those efforts at the present time, which it did not do (see Bautista
v Canada (Minister of Citizenship and Immigration), 2010 FC 126 at paragraphs
8, 10 and 15, [2010] FCJ No 153 (QL); Harinarain Kumati v Canada (Minister
of Citizenship and Immigration), 2012 FC 1519 at paragraphs 27, 28, 34, 39
and 42, [2012] FCJ No 1637 (QL) [Harinarain]; Orgona v Canada (Minister
of Citizenship and Immigration), 2012 FC 1438 at paragraphs 11, 12, 15 and
16, [2012] FCJ No 1545 (QL); and others). In the applicants’ view, “adequate”
means effective protection, though not in every case and not guaranteed.
[18]
Had the Board applied the right test, the
applicants say the sources consulted by the Board show that no such protection
exists on an operational level. Rather, they report the following: police
corruption; discrimination and violence against the Roma; segregation of the
Roma; 80 percent unemployment among Roma; and efforts to improve the situation
have had little impact. Further, they say that the Board misconstrued the response
to information request. The applicants say the evidence proves the Board wrong
and its failure to deal with the contradictory evidence renders the decision
unreasonable (see Ignacz v Canada (Minister of Citizenship and Immigration),
2013 FC 1164 at paragraphs 23 and 30, [2013] FCJ No 1253 (QL); Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL)
at paragraphs 15 to 17, 157 FTR 35).
[19]
Altogether, the
applicants submit that the Board’s failure to look at
operational adequacy and to properly consider their evidence made the decision
unreasonable.
Respondent’s
Written Submissions
[20]
The respondent says the standard of review is
reasonableness and the decision was reasonable.
[21]
The respondent says that the onus is on the
applicants to rebut the presumption of state protection and that the test is
adequacy, not effectiveness (see Carrillo v Canada (Minister of Citizenship
and Immigration), 2008 FCA 94 at paragraphs 30 and 38, [2008] 4 FCR 636).
Here, the evidence on Poland’s responses to anti-minority incidents were mixed
and did not rebut the presumption of state protection. As for the applicants’
claim that the Board ignored evidence, the respondent notes that they give no
examples of any contradictions between the Board’s conclusions and the
documentary evidence. There is no reviewable error.
Analysis and
Decision
[22]
Issue 1
What is the standard of
review?
Where previous jurisprudence has determined the standard of
review applicable to a particular issue before the court, the reviewing court
may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190 [Dunsmuir]).
[23]
The parties agree that the standard of review
for all issues is reasonableness, but I do not. Chief Justice Paul Crampton
recently explained the standard of review for decisions on persecution and
state protection in Ruszo v Canada (Minister of Citizenship and Immigration),
2013 FC 1004 at paragraphs 20 to 22, [2013] FCJ No 1099 (QL) [Ruszo]. In
essence, since the jurisprudence has developed clear tests for both, a board
cannot depart from them. Therefore, where applicants allege that a board
misunderstood the test, the standard is correctness and no deference is owed to
the board’s understanding of the relevant tests. However, where applicants
challenge how the tests were applied to the facts, those are questions of mixed
law and fact and the standard is reasonableness (Ruszo at paragraphs 20
to 22; Gur v Canada (Minister of Citizenship and Immigration), 2012 FC
992 at paragraph 17, [2012] FCJ No 1082 (QL); Hinzman v Canada (Minister of Citizenship
and Immigration), 2007 FCA 171 at paragraph 38, 282 DLR (4th) 413 [Hinzman]).
Here, the applicants allege both types of errors, so I will review the former
type for correctness and the latter type for reasonableness.
[24]
When applying the reasonableness standard, I
should not intervene if the Board’s decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (see Dunsmuir at paragraph
47; and Khosa at paragraph 59). As the Supreme Court held in Khosa
at paragraphs 59 and 61, a court reviewing for reasonableness cannot
substitute its own view of a preferable outcome, nor can it reweigh the
evidence.
[25]
Issue 2
Did
the Board misunderstand the tests for persecution and state protection?
The
applicants’ first argument is that the Board failed to consider the
well-foundedness of the applicants’ fears since it did not assess whether the
acts of discrimination cumulatively amounted to persecution. Rather, it
assessed only state protection and decided that the fear was not well-founded
since state protection exists.
[26]
The Board made no mistake in that regard. In Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689 at 712, the Supreme Court of
Canada said that “if a state is able to
protect the claimant, then his or her fear is not, objectively speaking,
well-founded.” Similarly, in Hinzman, the Federal Court of Appeal said
the same thing at paragraph 42:
In determining whether refugee claimants have an
objective basis for their fear of persecution, the first step in the analysis
is to assess whether they can be protected from the alleged persecution by
their home state. […] Where sufficient state protection is available, claimants
will be unable to establish that their fear of persecution is objectively
well-founded and therefore will not be entitled to refugee status. It is only
where state protection is not available that the court moves to the second
stage, wherein it considers whether the conduct alleged to be persecutory can
provide an objective basis for the fear of persecution.
[27]
The Board was therefore correct to approach the
issue the way it did. Having found adequate protection, there was no need to go
on to consider whether the cumulative acts of discrimination amounted to
persecution since such a finding could not have changed the result.
State
Protection Test
[28]
As for the state protection test, the Board made
the following statements in its decision:
[6] As states
are presumed capable of protecting their citizens, an important issue before me
is whether there is clear and convincing evidence that Polish authorities would
not, on a balance of probabilities, be reasonably forthcoming with serious
efforts to protect the claimants if they were to return to Poland now. It was open to the claimants to rebut the presumption of state protection with
clear and convincing evidence that adequate protection would not be reasonably
forthcoming to them.
…
[8] According
to refugee protection law, states only need to provide adequate protection and
do not have to provide perfect protection; in other words, states only have to
make serious efforts at protection and do not have to provide de facto
effective or de facto guaranteed protection. Therefore, the state
protection issue here is only whether Polish authorities can be reasonably
expected to provide the claimants with serious efforts at protection if they
were to return to Poland, and not whether those authorities can be reasonably
expected to provide the claimants with de facto effective or de facto
guaranteed protection.
…
[12] The latest
United States of America (US) Department of State country report indicates that
the state of Poland does not condone violence or discrimination against ethnic
minorities, and it also indicates that Poland is making serious efforts, both
in policy and in practice, to combat violence and discrimination against minorities,
as follows:
…
[15] Response to
an Information Request POL103089.E further indicates the same thing: while
state protection for ethnic minorities in Poland is not perfect, adequate
protection mechanisms do exist and are available to them.
…
[17] Based upon
my review of the objective country conditions documents referenced above, I
find that I am not persuaded on a balance of probabilities that Polish
authorities would not be reasonably forthcoming with serious efforts to protect
the claimants if they were to return to Poland. I therefore find, on the
evidence, that the claimants have not rebutted the presumption of state
protection with clear and convincing evidence.
(Footnotes omitted)
[29]
In Harinarain I wrote:
[26] The
Board’s decision, however, frequently invokes the “serious efforts” of a state
to provide protection. This concept is invoked at least ten times in its
decision, including in its stating of the test for refugee status:
According to refugee
protection law, home states only need to provide adequate protection and do not
have to provide perfect protection: in other words, home states only need to
make serious efforts at protection and do not have to provide de facto
effective or de facto guaranteed protection.
[27] The use of
the phrase “in other words” in the passage is incorrect: “adequate protection”
and “serious efforts at protection” are not the same thing. The former is
concerned with whether the actual outcome of protection exists in a given
country, while the latter merely indicates whether the state has taken steps to
provide that protection.
[28] It is of
little comfort to a person fearing persecution that a state has made an effort
to provide protection if that effort has little effect. For that reason, the
Board is tasked with evaluating the empirical reality of the adequacy of state
protection.
[29] This Court
has affirmed this interpretation of state protection repeatedly. In Lopez v Canada (Minister of Citizenship and Immigration), 2010 FC 1176, [2010] FCJ No 1589, Mr.
Justice Roger Hughes made this clear (at paragraph 8):
Another error of law
is with respect to what is the nature of state protection that is to be
considered. Here the Member found that Mexico “is making serious and genuine
efforts” to address the problem. That is not the test. What must be considered
is the actual effectiveness of the protection.
[30] In Garcia
Bautista v Canada (Citizenship and Immigration), 2010 FC 126, [2010] FCJ No
153, Mr. Justice Michel Beaudry indicated the same principle (at paragraph 10):
First
of all, it weighed the evidence of criticisms of the effectiveness of the
legislation against evidence on the efforts made to address the problems of
domestic violence. This is not enough to ground a finding of state protection;
regard must be given to what is actually happening and not what the state is
endeavoring to put in place (A.T.V. v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1229, 75 Imm. L.R. (3d) 215 at paragraph 14).
[31] Most
recently, Madam Justice Catherine Kane confirmed the same principle in Ferko
v Canada (Minister of Citizenship and Immigration), 2012 FC 1284 at
paragraph 44:
The
test is not ‘perfect’ state protection, but adequate state protection. Still,
mere willingness to protect is insufficient; state protection must be effective
to a certain degree: Bledy v Canada (Minister of Citizenship and
Immigration), 2011 FC 210, 97 Imm RL (3d) 243 at para. 47.
[32] On this
point, therefore, the Board clearly misstated the law. …
[30]
In the present case, the Board member does make
references to “adequate protection” and “serious efforts, both in policy and in
practice”. However, in paragraph 17 of the decision, the Board clearly applies
the “serious efforts” test and in my opinion, paragraph 17 is a central finding
in the decision. As well, in paragraph 8 of the decision, the Board also adopts
the “serious efforts” test. Based on these statements, I am of the view that
the board applied the wrong test with respect to its state protection finding.
[31]
The application for judicial review is therefore
allowed and the matter is referred to a different panel of the Board for
redetermination.
[32]
Because of my finding on this issue, I need not
deal with the remaining issue.
[33]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
[34]
The respondent, with the consent of the
applicants requested that Klaudiusz Dawidowicz, Kornela Klaudia Kowalska,
Juliano Gabriel Kowalski (a.k.a. Julianno Gabrie Kowalski) and Chanel Irena
Kowalsk (a.k.a. Chanel Irena Kowalska) be removed as applicants. I will grant
this request.
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