Docket: IMM-5543-10
Citation:
2015 FC 414
Ottawa, Ontario, April 1, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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MIROSLAV
SARKOZI, ANDREJ BALOG, ZANETA BALOGOVA, GALINA BALOGOVA, VIKTOR SARKOZI,
ANDREJ BALOG, ANDREJ BALOG, MARIE BALOGOVA, AND LUKAS BALOG
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This judicial review concerns a Czech family of
Roma ethnicity, who were denied refugee protection status on grounds of adverse
credibility, persecution and state protection findings. This case was argued in
conjunction with IMM-6448-10 and the Court’s comments on this procedure are
contained in Lasab v Canada (Citizenship and Immigration), 2015 FC 413.
II.
Background
[2]
This case started with nine (9) Czech nationals
of Roma ethnicity. Five (5) claimants have withdrawn. Mr. Andrej Balog returned
to the Czech Republic.
[3]
The Applicants rely on a litany of incidents
which they say constitute persecution including several attacks by skinheads,
racial insults on public transport and being forced off the transport, and
removal from a soccer (football) team due to Roma ethnicity. There were also
claims of forced sterilization, and petitions by skinhead residents to remove
Romas from their rental properties.
[4]
Victor Sarkozi suffers from mental illness and
was enrolled in a special needs school – without the consent of his parents. He
was constantly harassed, not protected or assisted by teachers and eventually
he was attacked and injured. He was ultimately withdrawn from the school.
[5]
The school beating incident and an attack on two
other claimants by skinheads were reported to police but no arrests were made.
[6]
In the Refugee Protection Division [RPD]
decision, the Member found a number of credibility concerns. Specifically,
there was confusion as to whether an apology was issued for the forced
sterilizations. With respect to Miroslav Sarkozi, there were significant
discrepancies between his PIF and his testimony related to attacks on his home.
He stated that his children were present when in fact they had not been born.
Similarly he gave contradictory evidence about being attacked on a train.
[7]
The RPD did note that many Roma children in the
Czech Republic are sent to special schools that cater to students aged 3-19
with developmental disabilities. The RPD, while noting some improvements in
this area, acknowledged continuing prejudices despite these improvements. The
RPD concluded that serious efforts were being made to address this type of
discrimination. It concluded that these incidents, viewed separately or
cumulatively, did not rise to the level of persecution.
[8]
While the RPD confirmed the evidence that forced
sterilization existed, was being investigated and compensation might become
available, nevertheless it concluded that the two incidents of forced
sterilization relied upon were not sufficiently documented.
[9]
With respect to state protection, the RPD noted:
the basic democratic nature of the Czech Republic; legislation to protect Roma;
and, legislation against discrimination and hate crimes. Also noted were
efforts to improve trust between Roma and police, efforts to train Roma for
police and to sensitize police to Roma issues. The ultimate conclusion was that
the Czech government was making serious efforts to overcome discrimination;
that police responded to complaints and therefore, the Applicants had not
rebutted the presumption of state protection with clear and convincing
evidence.
III.
Analysis
[10]
The standard of review of the RPD decision is
reasonableness, both as to credibility, persecution and existence of state
protection (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Tetik
v Canada (Citizenship and Immigration), 2009 FC 1240, 86 Imm LR (3d) 154
(FC)). The issue of the proper legal test for the determination of state
protection is reviewable on a correctness standard (Ruszo v Canada
(Citizenship and Immigration), 2013 FC 1004, 440 FTR 106).
[11]
There are three distinct but major problems with
the RPD’s decision – credibility, persecution and state protection.
[12]
With respect to credibility or lack thereof, the
concern centred on Miroslav Sarkozi and Mr. Andrej Balog (who is no longer an
Applicant). While the concerns about Sarkozi appear reasonable, it was both
unreasonable and unfair to lump the other Applicants into the concerns for
Sarkozi. Not only did the RPD not hold Sarkozi not to be otherwise credible,
except for two incidents, it expressed no substantive credibility concerns
about the other Applicants, each of whom had their own evidence and claim.
[13]
For that reason, the RPD’s credibility finding
should not stand.
[14]
In regards to discrimination/persecution, the
RPD held that the incidents of discrimination did not rise to the level of
persecution without providing either an analysis of the cumulative effects or
providing an explanation why these acknowledged incidents of discrimination did
not reach the level of persecution.
[15]
This Court has stated that it is insufficient to
simply state that it considered incidents cumulatively (Mete v Canada
(Minister of Citizenship and Immigration), 2005 FC 840, 46 Imm LR (3d)
232). The Applicants were entitled to know why these incidents (such as forced
sterilization, schooling, etc.) did not rise to the level of persecution.
[16]
Lastly, unlike the situation in Lasab v
Canada (Citizenship and Immigration), 2015 FC 413, the issue of state
protection was a live issue. The RPD failed, as it is required to do, to
consider operational adequacy. It listed the efforts without considering
whether they were, in reality, adequate. The test is not “serious efforts” to achieve state protection but
whether state protection is in fact adequate (Canada (Attorney General) v
Ward, [1993] 2 S.C.R. 689, 103 DLR (4th) 1).
[17]
The state protection analysis was incomplete and
cannot stand.
IV.
Conclusion
[18]
This judicial review will be granted. The matter
will be referred back to the RPD for a new decision by a differently
constituted panel.
[19]
There is no question for certification.
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