Docket: IMM-5685-13
Citation:
2014 FC 719
Ottawa, Ontario, July 18,
2014
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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GORAN DIMITRIJEVIC
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of a decision dated August 6, 2013 of the Refugee
Protection Division [RPD] of the Immigration and Refugee Board of Canada. The
Board Member [the Member] determined that the applicant, Goran Dimitrijevic,
was not a convention refugee or person in need of protection under sections 96
and 97 of IRPA.
[2]
For the reasons that follow, the Court finds
that its intervention is required in this case and allows the application for
judicial review.
II.
Background
[3]
The applicant is a citizen of Serbia and of Roma ethnicity. He fled from Serbia to Canada and sought refugee protection on the
basis that he suffered discrimination in Serbia as a Roma person.
[4]
In the initial version of his Personal
Information Form [PIF], the applicant did not mention any specific incidents of
persecution that he had suffered, but rather spoke of the various ways in which
he felt that the Roma were discriminated against in Serbia.
[5]
In a modified response to question 31 of his PIF
[the amended PIF], the applicant stated that on June 15, 2012, his wife left
him, taking their daughter with her. On November 21, 2012 their divorce was
finalized.
[6]
The applicant alleged that subsequently, Serbian
nationalists did not allow his daughter to return and be with her father, as
she wished. He alleged that he was assaulted by men who burned his cow’s food
and told him to leave the country or they would kill him. He never complained
about this incident to the authorities.
[7]
He also alleged that the police would repeatedly
stop him and bring him to the police station, though he, at least on one
occasion, claimed never to have committed any crimes.
III.
Impugned decision
[8]
The Member did not find the applicant credible.
[9]
The Member determined that the applicant did not
refer to any specific acts in his PIF, but rather spoke only of general
discrimination against Roma. In his amended PIF, he mentioned for the first
time that if something were to happen in the village, the police would
systematically come and bring him to the station so they could beat him until
he would admit to a crime that he did not actually commit, and that they would
keep him for two to three days.
[10]
The Member emphasized contradictions between the
applicant’s PIF and amended PIF and his testimony, which he was unable to
explain. The Member found that if the applicant had been subject to such
systematic discrimination, he would have mentioned it in his first PIF.
[11]
In his amended PIF he spoke of a death threat
that he did not mention in his first PIF, and again was unable to explain the
discrepancy.
[12]
Furthermore, the Member found that the applicant
had failed to rebut the presumption of adequate state protection. The
applicant’s allegations of maltreatment at the hands of local policemen were
insufficient, since local failures to provide effective policing do not amount
to a lack of state protection.
[13]
The Member also cited an Operational Guidance
Note from the UK Border Agency which discusses improvements in the treatment of
Roma in Serbia.
[14]
As a result of his conclusions on credibility
and state protection, the Member found that the applicant was not a Convention
refugee.
IV.
Standard of review
[15]
The standard of review applicable to a finding
on credibility by the Board is reasonableness (Wei v Canada (Citizenship and
Immigration), 2012 FC 911 at paragraph 28; Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732; Elmi v Canada (Minister
of Citizenship and Immigration), 2008 FC 773 at paragraph 21, and Wu v
Canada (Minister of Citizenship and Immigration), 2009 FC 929 at paragraph
17).
[16]
In reviewing the Officer’s consideration and
treatment of evidence, the appropriate standard of review is reasonableness
(see, for example, Y.Z. v Canada (Minister of Citizenship and Immigration),
2009 FC 749, [2009] FCJ No 904 at paragraph 22.)
V.
Issues
[17]
There are two relevant issues in the case at
bar:
1. Was the Member’s credibility finding reasonable?
2. Whether the Board’s reasons on state
protection sufficiently explain its decision to permit determination of whether
the conclusion is within the range of acceptable reasonable outcomes?
VI.
Analysis
A.
Member’s credibility finding
[18]
In his decision, the Member concluded that the
determinative issues raised by the applicant’s claim were his credibility and
available state protection. The applicant contends that the only basis for the
Member’s negative finding of credibility was the more general nature of the
allegations in his first PIF, as opposed to the more specific allegations he
raised in his amended PIF.
[19]
The applicant contends that the Member failed to
analyze or even refer to the applicant’s “mental state of mind” as the
explanation for his omission of important facts from his initial PIF. He refers
to a forensic psychological report obtained by counsel concluding that he
suffered from severe depression, Post-Traumatic Stress Syndrome and that simple
thoughts of his past impaired his attention and concentration.
[20]
It is trite law that credibility assessments are
the heartland of the Board’s jurisdiction. The Member emphasized the fact that
in the initial version of his PIF, the applicant did not refer to any specific
persecutory acts, but rather spoke of general discrimination against the Roma.
It was only in the amended PIF that he spoke of mistreatment by the police. The
applicant explained this omission by alleging that he suffers from chronic
depression and post-traumatic stress disorder, and as a result, was unable to
complete his PIF properly. The applicant was assisted by counsel on the
preparation of the PIF and it is difficult to accept that any possible
mistreatment by the police or other authorities would not have been canvassed
with him.
[21]
Moreover, in reviewing this report of the
psychologist, the opinion was provided with the view to bolstering the
subjective “well-foundedness” of the applicant’s fear from being returned to Serbia. The report was not written to sustain the conclusion that the applicant would not
have been able to properly complete his PIF under the guidance of his counsel
and it contains no opinion to that effect.
[22]
Refugee claimants who make material omissions
from their PIF do so at their own risk. Attempts to bootstrap credibility
lapses of important omissions from documents by retaining forensic medical
experts, particularly when made under the guidance of counsel, are doomed to
failure and cannot displace the role of the decision-maker in assessing the
credibility of the witness. As Justice Pinard made clear in Jin v Canada
(Citizenship and Immigration), 2012 FC 595 [Jin] at paragraph 22,
the onus is on the applicant to include all relevant facts in his PIF, and the
RPD is entitled to draw negative inferences from omissions in a PIF (Jin
at para 11).
[23]
The Member also based his credibility finding on
contradictions in the applicant’s testimony. When questioned about his
interactions with the police, he both confirmed and denied having committed
crimes at different junctures in his testimony. If the police were
systematically stopping him for no reason, this fact should have been mentioned
in his first PIF because it is central to his narrative. Contradictions and
omissions of significant events from the applicant’s PIF entitle the Member to
draw a negative credibility conclusion (see Aragon v Canada (Citizenship and Immigration), 2008 FC 144 at para 22).
[24]
As a result, I conclude that the Member’s
credibility findings are sustained by the evidence before him and do not
constitute a reviewable error.
B.
Sufficiency of Reasons on State Protection
[25]
Despite the negative credibility findings, the
applicant acknowledges that the Board must still fully consider and assess the
documentary evidence demonstrating risk to similarly situated individuals,
given that his claim is based on his profile and the treatment of similarly
situated individuals in Serbia today; see B231 v Canada (Citizenship and
Immigration), 2013 FC 1218 (Kane J.), citing Maimba v Canada (Minister
of Citizenship and Immigration), 2008 FC 226 at para 22, 70 Imm LR (3d)
305; Kanesaratnasingham v Canada (Minister of Citizenship and Immigration),
2008 FC 48 at para 8, [2008] FCJ No 61.
[26]
I agree with the applicant that the Member
inexplicably chose to reference only two outdated documents in the
comprehensive National Documentation Package on Serbia [the Package] , ignoring
more recent documents containing contradictory evidence, without any attempt to
provide an analysis or explain his reasoning.
[27]
For example out of the extensive number of
documents making up Package, the Board chose only to refer from the UK border
agency of the EC Progress report Serbia 2007 and USSD 2007. The brief
conclusory reference from these documents was to the effect that despite
societal discrimination against Roma, it was not sufficient to amount to
persecution, noting as an option the possibility of internal relocation to
another part of Serbia to avoid facing persecution.
[28]
The reasons contained no reference to any of the
contradictory documentation in the Package, including for example the 2012 United States country report on human rights practices for 2011. Under the titles
Internally Displaced Persons and National/Racial/Ethnic Minorities it stated as
follows:
There were approximately 22,000 officially
registered Romani displaced persons in the country. However, the UNHCR
estimated that 40,000 to 45,000 displaced Roma lived in the country, many of
whom presumably lacked personal documents necessary to register their status.
While some displaced Roma lived in government-supported collective centers,
living conditions for Roma (both local and displaced) were generally extremely
poor. Local municipalities often were reluctant to accommodate them. If Roma
did stay, they often lived near major cities or towns in unauthorized,
isolated, informal settlements without electricity, water, sanitation, or other
public services.
Roma, who constituted 1.4 percent of the
population in the 2002 census but whose actual number was believed to be
approximately 5.4 percent, continued to be the most vulnerable minority
community and were the targets of police violence, societal discrimination
and verbal and physical harassment.
On June 27, six individuals were convicted for
inciting racial and national hatred and intolerance in Jabuka village in June 2010.
All six were given sentences below the legally prescribed minimum, one to eight
years of imprisonment. Four were sentenced to five months of probation and two,
who were convicted as minors, were sentenced to “correctional measures”.
[Emphasis added]
[29]
The jurisprudence is clear that there is a
presumption of state protection and a claimant seeking to rebut it must adduce “ . . . relevant, reliable and convincing evidence which
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate” (see Canada (Minister of Citizenship
and Immigration) v Carrillo, 2008 FCA 94 at paragraph 30 [Carrillo]).
In addition, before this Court the applicants must demonstrate that the Board’s
decision on adequacy of protection (accepting it as the determinative issue)
falls outside of the range of acceptable reasonable outcomes on the basis of
the facts and the law or is insufficiently articulated to allow the reviewing
court determine that the decision is reasonable.
[30]
I adopt the following reasoning of Justice
Hansen in Polgari v Canada (Minister of Citizenship and Immigration),
2001 FCT 626 concerning the failure to analyze or address contradictory
documentation at stated at paragraph 32:
Second, the documents tendered by the
applicants and those contained in the RCO disclosure materials cast doubt and
indeed contradict the availability and effectiveness of state protection for
Hungarian Roma. While it may have been reasonably open to the panel to
make the findings it did, the absence of any analysis of the extensive
documentation contained in the Hungarian Lead Case Information Package and
the materials in the RCO disclosure package or the documents submitted by the
applicants coupled with the failure to adequately address the contradictory
documents and explain its preference for the evidence on which it relied
warrants the Court's intervention. [Emphasis added]
See also the cases of Mohacsi v. Canada (Minister of Citizenship and Immigration), 2003 FCT 429 at para 54 and Sivapathasuntharam
v Canada (Minister of Citizenship and Immigration), 2012 FC 486 at para 22.
[31]
The respondent attempted to engage the Court in
a review of the evidence contained in the record to demonstrate that they
reasons were sufficient based on the Supreme Court decision in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62. However, in that case the Court explained the role of reasons in
the reviewing process as follows at paras 14 and 16:
[14] Read as a whole, I do not see Dunsmuir
as standing for the proposition that the “adequacy” of reasons is a stand-alone
basis for quashing a decision, or as advocating that a reviewing court
undertake two discrete analyses — one for the reasons and a separate one for
the result (Donald J. M. Brown and John M. Evans, Judicial Review of
Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510). It
is a more organic exercise — the reasons must be read together with the outcome
and serve the purpose of showing whether the result falls within a range of
possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir
when it told reviewing courts to look at “the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes” (para. 47).
…
[16] Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not required to
make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion (Service Employees’ International Union,
Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382,
at p. 391). In other words, if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met. [Emphasis added]
[32]
To the same effect, the Supreme Court in the
decision of Alberta (Information and Privacy Commissioner) v Alberta
Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, released the day
after Newfoundland Nurses commented on the limits of the court’s
capacity to reformulate the reasons of the tribunal at paragraph 54 as follows:
54.
I should not be taken here as suggesting that
courts should not give due regard to the reasons provided by a tribunal when
such reasons are available. The direction that courts are to give respectful
attention to the reasons “which could be offered
in support of a decision” is not a “carte blanche to reformulate a tribunal’s decision in a way that casts aside an
unreasonable chain of analysis in favour of the court’s own rationale for the
result” (Petro-Canada v. Workers’
Compensation Board (B.C.), 2009 BCCA 396, 276 B.C.A.C. 135, at paras. 53
and 56). Moreover, this direction should not “be
taken as diluting the importance of giving proper reasons for an administrative
decision” (Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339, at para. 63, per Binnie J.). On the
contrary, deference under the reasonableness standard is best given effect when
administrative decision makers provide intelligible and transparent
justification for their decisions, and when courts ground their review of the
decision in the reasons provided. [Emphasis added]
[33]
In accordance with these directions, I conclude
that the reasons of the Board were selective in their reliance upon an outdated
country report in the 2012 National Package, while failing to consider the
contradictory materials contained therein, or to conduct any analysis
supporting their preference in weighing the materials, such that I am unable to
understand why the Board made its decision or to permit me to determine whether
the conclusion is within the range of acceptable outcomes.
[34]
I note that the respondent attempted as well, to
raise the issues of the applicant’s failure to seek recourse for protection
from the police or to suggest that local conditions should not be presumptive
of the conditions in the rest of the country. These issues were not mentioned
in the Board’s analysis and are neither germane nor determinative of the
Court’s decision in light of my conclusions described above.
VII.
Conclusion
[35]
The application for judicial review is allowed.
The matter is sent back for a redetermination before a newly constituted panel.
[36]
No question of general importance was raised for
certification.
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