Docket:
IMM-3807-13
Citation: 2014 FC 276
Ottawa, Ontario, March 21, 2014
PRESENT: The Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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ZELJKO VILJANAC, RADMILA VILJANAC, MARKO VILJANAC, NATASA
VILJANAC
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act) of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) dated April 30, 2013 wherein the
Board determined that the respondents are Convention refugees.
FACTS
[2]
The principal respondent (male respondent), his
spouse (female respondent), and their two minor children are all citizens of Croatia, a designated country of origin pursuant to section 109.1 of the Act.
[3]
The respondents are of Serbian ethnicity. They
assert that because of their membership in the Serbian community, they have had
difficulty in obtaining work, suffered discrimination in the workplace, and
were verbally harassed.
[4]
The respondents’ son alleges having suffered
multiple events of aggression by other children, including an incident in
September, 2011 where a 15 year-old neighbour planted a kitchen knife in the
ground and yelled that he would slaughter him as he is a Serb.
[5]
They also allege that on or about November 18,
2012, an unknown individual threw a brick through the bathroom window of the
family residence and returned later to shout insults at the female respondent.
[6]
The respondents came to Canada on January 12, 2013 and claimed refugee status.
THE DECISION
UNDER REVIEW
[7]
The Board issued a very succinct decision
finding that the respondents were Convention refugees.
[8]
The Board found that for the majority of their
testimony, including the discrimination they had suffered as well as the acts
of physical violence suffered by their son, the respondents were credible
witnesses. However, it did not accept the respondents’ testimony about a final
series of events where the respondents had claimed that a man had presented
himself at their residence to threaten them. Inconsistencies and adjustments in
testimony led the Board to conclude that these events never happened, and that
the respondents had attempted to mislead the Board by adding this event to
their otherwise credible testimony.
[9]
The Board found that the incessant and repeated
number of acts of discrimination suffered by all members of the family by
reason of their nationality, particularly their son being beaten and the
discrimination suffered by the female respondent in finding employment,
amounted to persecution.
[10]
The Board found that state protection would not
be reasonably forthcoming in this particular case. The respondents had made
several attempts to obtain protection from police authorities and the Board
considered that although the police responded on every occasion, they
consistently failed to provide an adequate level of protection to the family.
[11]
Addressing an internal flight alternative (IFA),
the Board found that the documentary evidence confirmed that discrimination
against ethnic Serbs exists throughout Croatia, and that on a balance of
probabilities the respondents would not likely be able to find gainful
employment in all of Croatia.
ISSUES
[12]
The issues in this application are:
1) Was the Board’s analysis as to the presence of discrimination that
amounts to persecution reasonable?
2) Was the Board’s analysis of state protection reasonable?
3) Was the Board’s analysis of the presence of a viable IFA reasonable?
STANDARD OF REVIEW
[13]
The Board’s findings relating to discrimination,
state protection, and IFA are all questions of fact or mixed fact and law and
are all reviewable on a standard of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9 at para 53 [Dunsmuir]; Smirnova v Canada (Minister of
Citizenship and Immigration), 2013 FC 347 at para 19; Sefa v Canada
(Minister of Citizenship and Immigration), 2010 FC 1190 at para 21; Velez
v Canada (Minister of Citizenship and Immigration) 2013 FC 132 at para 24).
[14]
In reviewing the Board’s
decision on the standard of reasonableness, the Court should not intervene
unless the Board came to a conclusion that is not transparent, justifiable and
intelligible and within the range of acceptable outcomes based on the evidence
before it (Dunsmuir, at para 47; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 59).
ANALYSIS
Discrimination suffered by the respondents
[15]
The applicant acknowledges that an asylum claimant
may demonstrate that the cumulative nature of the discrimination suffered
amounts to persecution (Kanto v Canada (Minister of Citizenship and
Immigration), 2012 FC 1049 at para 38), however this is not the case here.
[16]
I agree. The recognition of the cumulative
effect of discriminatory acts does not mean that a claimant will meet their
burden by simply alleging repeated acts of harm. As the Federal Court of Appeal
found in Munderere v Canada (Minister of Citizenship and Immigration),
2008 FCA 84 at para 45, addressing this same issue of cumulative
discrimination, “whether a claimant
relies on a single or a number of events taken together, he still has the
obligation to satisfy the Board that, at the time of the hearing, he has a well
founded fear of persecution in regard to the country from which he seeks
protection”. While the Federal
Court of Appeal in Sagharichi v Canada (Minister of Citizenship and
Immigration), [1993] FCJ No 796 at para 3 found that the line between
persecution and discrimination is “difficult to establish”, it held that “in
all cases, it is for the Board to draw the conclusion in a particular factual
context by proceeding with a careful analysis of the evidence adduced and a
proper balancing of the various elements contained therein, and the intervention of this Court is not
warranted unless the conclusion reached appears to be capricious or
unreasonable”.
[17]
Here, the
Board’s decision does not demonstrate a careful analysis or a proper balancing
of the evidence and is therefore unreasonable. The Board’s finding that the “incessant
and repeated number of acts of discrimination suffered by all the members of
the family” amounted to persecution simply does not accord with the evidence
before it. While there is evidence that the respondent’s son was ostracized by certain classmates and neighbourhood children, the
Board’s finding of repeated physical violence is not substantiated. In the
respondent’s own Basis of Claim (BOC) form, he alleged only one incident of physical violence against
his son. Further, while the Board described the 2011 incident as one
where a 15 year-old neighbour “beat your children”, it is clear from the
evidence that while threats were uttered, there was no physical act committed.
The discriminatory acts suffered by the respondent’s son were neither endorsed
nor encouraged by the Croatian state authorities, and he was able to pursue his
education, including his religious education, in Croatia. The Board’s finding
of discrimination amounting to persecution in the workplace context is
similarly not supported by the evidence. Contrary to the Board’s finding that
the female respondent was unable to find employment for “numerous years”, a
review of the inconsistent work history provided shows that apart from a short
period between 2008 and 2009, the female respondent was able to find work in Croatia. Similarly, there is no indication
that the male respondent had difficulty finding work; in fact he had held the
same job as a gravedigger for 16 years before leaving Croatia. The Board’s findings were not grounded
in the evidence before it and its analysis of the cumulative effect of the
discriminatory acts and the presence of persecution was inadequate.
State
Protection
[18]
The applicant submits that the Board failed to
apply the legal principles governing a state protection analysis. Moreover, the
applicant argues that the Board’s conclusions do not result from a careful
analysis of the evidence, and that its analysis is quasi-inexistent.
[19]
Again, I agree. The Board’s state protection analysis and its treatment of
the evidence submitted were entirely inadequate. The Board’s finding that the
police “consistently failed to provide an adequate level of protection to your
family” was not grounded in the evidence before it. It is recognized that the
police responded on every occasion that they were called by the respondents and
there was no evidence that the police failed to follow through on any
investigations or failed to provide any services. This is especially true given
the lack of police reports submitted and the fact that the respondents did not
follow up with the police after the 2011 incident.
[20]
There
is a presumption of state protection that the respondents had the burden to
rebut (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at 725, 726)
and this burden is even more difficult to meet in a democratic state like Croatia (Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para
57). The
Board’s overly brief treatment of state protection does not address any of
these legal principles and does not provide a reasonable basis upon which the
Board could have decided as it did (Alberta (Information and Privacy
Commissioner) v Alberta Teacher’s Association, 2011 SCC 61 at para 53).
Internal
Flight Alternative
[21]
When considering whether a claimant has a viable
IFA, the test is two-pronged. First, the Board must determine that there is no
serious possibility of the claimant being persecuted or being at risk in the
chosen IFA. Secondly, the Board must determine if it is objectively reasonable
to seek safety in the designated IFA (Zablon v Canada (Minister of
Citizenship and Immigration, 2013 FC 58 at para 20).
[22]
The applicant submits that it appears that the
Board erroneously combined these two steps into a single test, finding that
discrimination against ethnic Serbs exists throughout Croatia, especially in relation to accessing employment and that the respondents would not be able
to find gainful employment throughout Croatia. The Board also failed to
consider if a city in Croatia outside a war affected region could be designated
as an IFA.
[23]
Once again, I agree with the applicant. The Board’s treatment of the
existence of an IFA was deficient. It concluded that given the respondents’
“limited skills and employment history”, on a balance of probabilities they
would not likely be able to find gainful employment in all of Croatia. Considering both the inconsistencies raised in the record as to the female respondent’s
employment history as well as the lack of evidence showing that employment as a
gravedigger, cleaning person or personal aid would not be reasonably
transferable to other areas of the country, the Board’s finding is not grounded
in the evidence before it.
CONCLUSION
[24]
Unfortunately
for the respondents, the Board’s decision is so deficient that it cannot be
saved by the reasoning in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62. As this Court
recently noted in Komolafe v Canada (Minister
of Citizenship and Immigration), 2013 FC 431 at
para 11, “Newfoundland
Nurses is not an open invitation to the Court to
provide reasons that were not given, nor is it licence to guess what findings
might have been made or to speculate as to what the tribunal might have been
thinking”. In this case the Board failed to
properly consider the evidence before it, and its analysis and reasons are so
inadequate that they cannot be considered reasonable.
[25]
For
these reasons, I would allow the application for judicial review. The matter is
remitted for reassessment by a differently constituted panel.
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