Docket: IMM-3346-11
Citation:
2016 FC 415
Ottawa, Ontario, April 14, 2016
PRESENT: The Honourable Madam Justice Elliott
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BETWEEN:
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RADEK BALAZ,
BOZENA KRISTOFOVA,
KAROLINA
BALAZOVA and
LAURA BALAZOVA
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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.
Overview
[1]
This application for judicial review concerns a
decision of the Refugee Protection Division of the Immigration and Refugee Board
of Canada (RPD) dated April 28, 2011 (Decision) which refused the claim of the Applicants
under sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (Act). The application is brought under section 72(1) of the Act.
[2]
The Applicants are a wife, her husband and two
minor children, both girls. The wife acted as principal claimant. They are
all citizens of the Czech Republic and are Roma, which was not disputed.
[3]
The Applicants allege the RPD ignored pertinent
evidence with respect to the inadequacy of state protection and erred in
relying on the June, 2009 issue paper of the Immigration Review Board. In the
written submissions there was a lengthy argument as to an apprehension of bias,
but I was advised at the outset of the hearing that the issue was resolved
between the parties and would not be canvassed before me. I therefore have not
considered those arguments.
II.
Background
A.
The Applicants’ Claim
[4]
The Applicants made a claim for refugee
protection based on fear of right-wing extremists, skinheads, and the Czech
people (white persons) because of the following:
•
the way the children generally were treated in
school and were placed in a special needs school when that was not required;
•
the wife losing her job, without explanation, to
someone who was not a Roma;
•
an attack on January 10, 2008 on the husband by
extremists when the family was shopping for which he required medical
intervention;
•
two attacks on the wife, one of which bruised
her back and a later one that bruised her leg; and,
•
the fact that racial slurs were directed at the
Applicants during the physical attacks and at the children’s school and because,
generally, “any place you go you are the object of
slurs; people do faces – make faces at you; you are just in the center [sic] of
those”.
B.
The Impugned Decision
[5]
The RPD identified credibility, discrimination versus
persecution and state protection as the determinative issues. Both “State Protection” and “Discrimination
vs. Persecution” were discussed separately after the allegations were
listed.
(1)
Credibility Findings
[6]
The RPD said credibility was one of the
determinative factors. In the Decision they expressed some credibility
concerns in particular with respect to a late document submitted by the
Applicant relating to the special needs school. The transcript of the hearing
shows the RPD did accept that the children attended a special needs school. Also,
after questioning by the RPD, the principal Applicant said she was told she
lost her job at the supermarket because the new employee had a higher
education. The RPD made no further comment than that clarifying statement.
[7]
The only negative credibility finding was the
rejection of the late evidence of a document about the special school. There
is no finding of credibility (or no credibility) either about the job loss or
that the wife said she reported one attack to the police but that was omitted
from her PIF.
[8]
The physical attacks on the husband and the wife
were accepted as occurring, including the medical intervention, but the lack of
witnesses was noted as going to the issue of state protection. There was no
rejection of the fears expressed by the Applicants although it was found they
did not rise to the level of persecution.
[9]
There is no finding that the allegations made by
the children when they returned from school saying they were unnecessarily
scowled at, punished, and yelled at by their teachers was not credible.
[10]
In the concluding remarks at paragraph 31 of the
Decision, the RPD says “there were some credibility
concerns regarding submission of corroborative evidence.” Presumably
this is a reference to the rejected late documentation (a letter) about the
special school as no other document was mentioned.
(2)
State Protection Findings
[11]
The RPD began the state protection analysis by discussing
the fact that the principal Applicant received a letter about transferring her
children to a “special” school dated June 31, 2008, when there are only 30 days
in June and that the applicant was confused when questioned about it. From
there they found the late disclosure letter regarding a special school would
not be accepted. They reviewed that the supermarket job was given to someone
with a higher education and then examined the physical assaults.
[12]
The RPD noted the physical assault on the
husband by skinheads required medical attention and the medical report was
taken to the police but no investigation could occur because there were no
witnesses.
[13]
With respect to the attack on the principal Applicant
on September 30, 2008, she claimed there were “white”
witnesses who did not help. At the hearing she said she went to the police but
that information was not in her Personal Information Form (PIF) so the RPD
found that omission “cast doubt” on her
testimony that she went to the police. Once again it was noted that “in the absence of witnesses the police would not have been
in a positon to investigate”.
[14]
Regarding the January 10, 2009 attack, the RPD
said the principal Applicant did not go to the police in the absence of
witnesses.
[15]
Counsel in submissions at the hearing said there
were no witnesses because “only ‘white’ people were on
the scene and they would not come forth to testify”. The RPD rejected
this for two reasons. One reason was that the principal Applicant was unable
to identify the perpetrators. The other reason was that there was no evidence
adduced that witnesses had not come forward, but rather it was that the
claimants could not provide identification of the perpetrators to the police.
[16]
Based on the foregoing, the conclusion drawn
under this heading of “State Protection” was as follows at paragraphs 17 to 20 of the Decision:
[17] . . . These incidents, as unfortunate
as they may have been, were such that the claimants could not provide
identification of the perpetrators to the police.
CONCLUSION
[18] The claimants are expected to have
approached the state authorities on the alleged threats and attacks experienced
by them at all levels available to them in the Czech Republic. The
claimants made some effort, but, in the absence of identification, how could
the police investigate? The fact that police cannot prevent a crime does not
suggest that they are unwilling or unable to offer protection. No police force
can be expected to solve all crimes. In the absence of identification, but
simply indicating to the police that some skinheads attacked them, is
insufficient evidence upon which the police would be able to make arrests.
[19] As stated in Kallai, Nikoletta, the
RPD had determined that the applicant had not discharged her burden of
rebutting the presumption of state protection, given the fact that it would
be difficult for the police to make arrests in the absence of the identity
of her assailants.
[20] In light of the foregoing, the
claimants have not provide [sic] any “clear and convincing” evidence of the
state’s inability to protect them. The onus is on them to do so, and they
have, therefore, not rebutted the presumption of state protection.
(All underlining is my emphasis)
(3)
Discrimination versus Persecution Findings
[17]
The entire reasoning and analysis of whether the
allegations of the Applicants, none of which were found not credible, amount to
persecution is contained in the following two paragraphs:
[21] Does the discrimination suffered by
this claimant amount to persecution when considered singularly or
cumulatively? To be considered persecution, the mistreatment suffered or
anticipated must be serious. In order to determine whether a particular
mistreatment would qualify as “serious”, one must examine what interest of the
claimant might be harmed; and to what extent the subsistence, enjoyment,
expression or exercise of that interest might be compromised. “Persecution”,
for example, undefined in the Convention, has been ascribed the meaning of
sustained or systemic violation of basic human rights in a fundamental way.
[22] I find that these incidents do not
rise to the level of persecution when considered individually and I also find
that they do not rise to the level of persecution when they are considered
cumulatively.
[18]
Following that determination, the RPD next considered
in paragraph 24 whether the principal Applicant would face a serious
possibility of persecution simply because she was Roma. The RPD had noted in
paragraph 23 various aspects of the documentary evidence on country conditions
in the Czech Republic including the following findings:
•
The Roma people are discriminated against and
although violent attacks had declined since 1990’s there is new evidence that
racially motivated attacks on minorities in the Czech Republic is [sic] on the
rise;
•
The Roma are vulnerable people in the Czech Republic subjected to ill-treatment from police, and courts do not deal with racially
motivated crime harshly enough; and,
•
There is evidence the state does not condone
and, for the most part, does not acquiesce to racial discriminatory behaviour,
particularly by extremist skinheads
[19]
The RPD in paragraph 25 went on to state the
presumption in favour of state protection and the various explanations and
qualifiers that have been layered on over the years through the jurisprudence
in this area. At paragraph 26 they found the probative evidence was not clear
and convincing that the Czech state is unwilling or unable to provide adequate
state protection. In doing so the RPD provided examples from the documentary
evidence including that:
•
In the mid-1990’s the Ministry of the Interior
launched an initiative to combat extremism, allowing for police monitoring of
extremist group activities and trends;
•
The government may prohibit gatherings,
concerts, activities or speech which incite hatred and did so throughout 2008;
•
In January 2008 police arrested 30 neo-Nazis in
the Prague city center [sic];
•
In October 2008 police countered a rally of
rightist extremists who had arrived at a Romanian settlement in Litvinov;
•
In May 2008 police successfully prevented a major
clash between anarchists and neo-Nazis in Brno expelling them from the city;
•
At the November 2008 Workers Party march in
Litvinov police were able to break up the demonstrations; and,
•
In December 2008 the police prevented the
far-right National Party from holding demonstrations in Brno.
[20]
Counsel for the Applicants put forward
documentary evidence to show the risk of serious harm to the Applicants. At
paragraph 27, the RPD said it had considered that evidence but provided no
extracts from it and did not refer to any specific document. They did footnote
that the evidence submitted can be found as Exhibit C-4. The RPD then stated:
[27] . . . The Board has considered the
submissions along with counsel’s documentary evidence. While there are
concerns from some groups that there is impunity for racially-motivated attacks
and the responses are not sufficient, the preponderance of evidence indicates
that the state is taking action against extremists and does not condone or
acquiesce to extremist actions, and those actions are effective. Police cannot
be solely responsible for changing people’s attitudes as this requires a
network of social agencies and institutions, but it is clear that police
intervened to offer protection when required.
[21]
The RPD noted at paragraph 28 that:
Discrimination is prevalent but there is
evidence that the Czech Republic is taking steps to
assist the Roma in several ways to ensure they will be able to participate in
Czech society.
[22]
Later in paragraph 28, reference was made to
those steps as including the establishment of an agency for social inclusion of
Romani communities whose aim is to improve the socio-economic conditions of
Roma. Reference was also made to assisting Roma in finding employment
including placing Romani representatives on the commission for all Romani
community affairs. The RPD concluded that area of fact-finding by saying at
the end of paragraph 28:
In this case discrimination faced by the
claimant, even cumulatively, does not rise to the level of persecution. However,
she is Roma and there is documentary evidence of persecution of Roma in the Czech Republic and the rise of the right-wing and neo-Nazis who advocate a solution to the
Roma problem even by force if necessary. The question becomes one of what the
state is doing to protect the Roma against such harm.
[23]
The RPD went on to note at paragraph 29 there
are “many signs of change specifically within the
educational system in the Czech Republic” and it gave examples such as
there is a secondary institution specially designed for Romani students and
there are seven branches throughout the country with a total of 600 students.
The government also offered to cover the cost of nursery school for parents who
could not afford it.
[24]
At paragraph 30, the RPD said “[the judiciary has prosecuted hate crimes committed against
the Roma on several occasions” concluding that paragraph with:
The preponderance of the documentary
evidence indicates that the Czech Republic government is making very serious
efforts to provide protection to the Roma whether as victims of hate crime,
assist in obtaining healthcare or education or inclusion in Czech society. As
noted above, there is discrimination against the Roma in various aspects of
their lives. However the Czech government is making very serious efforts to
overcome this discrimination. (my emphasis)
[25]
The conclusion at paragraph 31 was that the
principal Applicant has not rebutted the presumption of state protection and
that it applied equally to both sections 97 [sic] and 97 of the Act.
III.
Issue
[26]
In addition to the usual issue of what is the appropriate
standard of review, the only issue is whether the Decision should be set aside
as requested in the Notice of Application.
IV.
Analysis
A.
Standard of Review
[27]
There are only two standards of review: correctness
and reasonableness. Where the standard of review applicable to a particular
question before the court is settled in a satisfactory manner by past
jurisprudence, the reviewing court may adopt that standard of review. See Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 57 [Dunsmuir].
[28]
The correctness standard involves a
determination of whether the decision-maker arrived at the right conclusion.
No deference is shown to the decision maker’s reasoning process. If the
reviewing Court comes to a different conclusion the court will substitute its
own view and provide the correct answer, see Dunsmuir at paragraph 50.
[29]
The reasonableness standard requires the
reviewing court to show deference to the decision-maker. This means the court
will give due consideration to the determinations made by the decision maker,
respecting the legislative choice to leave some matters in the hands of
administrative decision makers. Reasonableness review focuses on “the existence of justification, transparency and intelligibility
within the decision-making process” and considers “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”,
see Dunsmuir at paragraphs 47 and 49.
[30]
The standard of review for whether the treatment
of the Applicants amounted to persecution has been determined in Ruszo v Canada (Citizenship and Immigration), 2013 FC 1004. In that case Chief Justice
Crampton determined there are two distinct questions each of which was
reviewable on a different standard. He held that with respect to articulating
the test for either state protection or persecution as existing jurisprudence
has established a clear test for each of them it is not open to the RPD to
adopt a different interpretation of those terms. And, as a result, the
articulation by the RPD of the tests is a question of law, reviewable on the
standard of correctness. The ensuing and fact specific determination of
whether the Applicants have established a well-founded fear of persecution or
rebutted the presumption of state protection is reviewable on a standard of
reasonableness as they are mixed questions of fact and law, see paragraphs 20 to
22.
[31]
The application of the tests to the facts is a
question of mixed fact and law, reviewable on a standard of reasonableness, see
Dunsmuir at paragraph 47.
B.
Should the Decision be Set Aside?
(1)
State Protection
[32]
In considering whether the Decision should be
set aside I will start with the state protection analysis found under the
heading “State Protection” (set out in detail at
paragraph 17 of these Reasons) and then the analysis later under the heading “Discrimination vs. Persecution”.
[33]
In arriving at the conclusion that the Applicants
had not rebutted the presumption of state protection, the RPD erred at
paragraph 18 with respect to the application of the test for state protection
when they found the claimants were expected to “have
approached the state authorities at all levels available to them in the Czech
Republic”. This is not a requirement when the discrimination involves
acts of criminal violence such as the assaults on the Applicants by skinheads,
see Molnar v Canada (Minister of Citizenship and Immigration), 2002 FCT
1081; Mohacsi v Canada (Minister of Citizenship and Immigration), 2003 FCT
429; Katinszki v Canada (Minister of Citizenship and Immigration), 2012.FC
1326.
[34]
The RPD also found at paragraphs 18 and 19 that
telling the police that skinheads attacked them, without providing a better
description was “insufficient evidence upon which the
police would be able to make arrests”. What is troubling about this
statement is the reference to the test being that police need to be able to make
arrests. While, in a functioning democracy, the state is presumed to be
able to provide protection for people it is not the case that protection
includes making arrests. Actions such as taking a report or conducting an
investigation with a view to making an arrest show a level of adequacy, not the
actual making of an arrest. For example, even if there are no witnesses this
court has held the police could canvass the area for possible witnesses, see Biro
v Canada (Minister of Citizenship and Immigration), 2012 FC 1120.
[35]
The analysis of state protection early in the
Decision is also scant. The focus is on “arrests” and “witnesses”. There is
no discussion of whether the state protection is adequate as the focus is on
the foregoing and whether the Applicants “approached
state authorities . . . at all levels available to them.” What is
meant by approaching other levels of state authorities in unclear. It seems to
suggest either higher levels of police authorities or other organizations put
in place by the state to assist Roma. In either case, given the physical
assaults that took place, the police force is the main institution put in place
to protect citizens, and other government or private institutions have neither
the mandate nor the means to provide protection to citizens, see Graff v
Canada (Citizenship and Immigration), 2015 FC 437 at paragraph 24.
[36]
The foregoing applications of the test are
reviewable on a standard of reasonableness. I find that the cumulative weight
of the errors in the analysis as stated above render the determinations made by
the RPD unreasonable.
[37]
Later in the Decision, after the analysis with
respect to discrimination versus persecution, the RPD again considers the state
protection test. In deciding the Applicants had not rebutted the presumption,
the RPD looked at “many signs of change”, “very serious efforts to provide protection”, and “very serious efforts to overcome this discrimination”.
This misstates the test of operational adequacy. In Dawidowicz v Canada (Citizenship and Immigration), 2014 FC 115 Mr. Justice O’Keefe reviewed
recent jurisprudence of this court dealing with the interpretation of state
protection. He summed it up at paragraph 28: “[i[t 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.” This misstatement of the test is an
error of law requiring return of the Decision.
(2)
Discrimination vs. Persecution Finding
[38]
The RPD identified the correct test for
determining whether persecution exists in that it means “sustained or systemic violation of basic human rights in a
fundamental way” and that they were to consider both the individual and
the cumulative acts of discrimination. Unfortunately, without any analysis at all,
the RPD then stated at paragraphs 21 and 22 its conclusion that the incidents
complained of “do not rise to the level of persecution
when considered individually and . . . [t]hey do not rise to the level of
persecution when they are considered cumulatively.”
[39]
In Sagharichi v Canada (Minister of
Employment and Immigration), [1993] FCJ No
796, the Federal Court of Appeal at paragraph 3
described what is required of a decision-maker when determining whether acts of
violence amount to persecution or discrimination:
It is true that the dividing line between
persecution and discrimination or harassment is difficult to establish, the
more so since, in the refugee law context, it has been found that
discrimination may very well be seen as amounting to persecution. It is true
also that the identification of persecution behind incidents of discrimination
or harassment is not purely a question of fact but a mixed question of law and
fact, legal concepts being involved. It remains, however, 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. (my emphasis)
[40]
Here there is a complete lack of analysis by the
RPD to the point that it is not possible to determine how or why they
reached the conclusion they did on persecution. There is no individualized
assessment of the risks recounted by the Applicants. There is no weighing and
balancing of any kind to allow me to know what caused the RPD to come to its
conclusion. The decision-making process lacks transparency and is unintelligible
with respect to this conclusion. It is unreasonable.
(3)
Credibility
[41]
The RPD said one of the determinative issues was
credibility. In addition to conducting no analysis of discrimination versus
persecution, the RPD made no concrete credibility findings for or against the
Applicants other than that they are Roma and the children did attend a special
school, although the RPD rejected the late evidence letter. As already stated,
the RPD cast some doubt on various aspects of the Applicants’ evidence but it
drew no distinct credibility conclusions. The reasons for the Decision are not
transparent or intelligible with respect to credibility as it is not known what
the comments about “doubt” mean or whether they formed any part of the actual
decision-making process. Nor is it possible to say what credibility issue or
issues, if any, were found to be determinative.
C.
Conclusion
[42]
The RPD identified all three issues –
credibility, discrimination vs. persecution, and state protection – as
determinative. Given the number of aspects of the Decision that are either not
transparent or are unintelligible, coupled with the application of the wrong
test for state protection, the Decision cannot stand. It is impossible to
follow the reasoning process to determine how or why the RPD conclusions were
reached. The Dunsmuir criteria have not been met. The Decision must be
set aside and returned for redetermination by a differently constituted panel.
[43]
Given this disposition, there is no serious
question of general importance to the legal system to be certified.
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