Docket: IMM-4436-16
Citation:
2017 FC 444
Ottawa, Ontario, May 03, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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SIMONA
KOTLAROVA
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant is a 20 year old ethnic Roma
citizen of Slovakia who claims refugee protection in Canada on the basis of
discrimination in healthcare, education, housing, employment and lack of police
protection. The Applicant was assaulted by a skinhead and was bitten by his
dog. The police in Slovakia did nothing in response to this assault. The
Refugee Appeal Division’s [RAD] decision of September 22, 2016, upheld the
Refugee Protection Division’s [RPD] finding that the Applicant was not a Convention
refugee or a person in need of protection because there was adequate state
protection in Slovakia.
[2]
This judicial review is allowed on the basis
that the RAD erred by applying the wrong test to the state protection analysis.
I.
Background
[3]
The Applicant alleges that her family has
experienced discrimination on a number of grounds, including healthcare and
education. The Applicant completed grade eight in a segregated Roma class,
where Roma students were given little instruction, sent to collect garbage, and
excluded from extracurricular activities. Roma students were also assaulted and
subjected to ethnic slurs. The Applicant says that she was unable to progress
past grade eight, because the discrimination impaired her ability to meet
entrance requirements for high school.
[4]
The Applicant also alleges discrimination in
employment. For instance, when she would turn up for job interviews that had
been arranged over the phone, she would be told that the positions were already
filled. She believes this was done because of her Roma ethnicity.
[5]
In May 2014, the Applicant’s mother was attacked
by skinheads at a train station when she was travelling home from the hospital
with her son. When she sought assistance from the police at the train station,
she was told to make a complaint in another city. When she did so, the police
there said that they could not help her as the attack had happened elsewhere.
[6]
The RPD accepted that the Applicant was
assaulted by a skinhead on September 12, 2015, when he yelled derogatory names
at her and her friend, spat on them, and then released his dog on them, which
attacked the Applicant. Bystanders did not intervene. The Applicant was turned
away from a nearby hospital and referred to a hospital in a city 80 kilometres
away, where she was eventually treated, but was refused an ambulance to
transport her there.
[7]
When the Applicant, her friend, and her
grandmother reported the attack to the police, they were required to wait for
hours. An officer took down their information and said he would follow up, but
failed to do so. When the Applicant’s grandmother returned to the police
station to inquire about the investigation, the officers became aggressive and
told her to leave and not to bother the police again.
II.
Decision under review
[8]
Before the RPD, the Applicant relied on the
following evidence to establish a lack of adequate state protection:
- Country
conditions documentation concerning difficulties faced by Roma in
accessing state protection;
- Her father’s
complaints to healthcare staff concerning her brother’s medical condition;
- Her mother’s
complaints to police; and
- Her complaint to
police and her grandmothers follow up, three weeks after, on her initial
complaint with the same police officer.
[9]
Although the RPD found the Applicant to be
credible, it concluded that she failed to rebut the presumption that state
protection would be available to her in Slovakia.
[10]
On appeal, the RAD confirmed the RPD’s
determination that the Applicant is not a Convention refugee or a person in
need of protection.
[11]
In keeping with the direction in Canada
(Citizenship and Immigration) v Huruglica, 2016 FCA 93, the RAD indicated
that it conducted its own independent assessment of the record to determine
whether or not the RPD erred. The RAD found that “the
mere fact of Roma ethnicity is not, in and of itself, sufficient to establish
that an applicant faces more than a mere possibility of persecution upon their
return to the Slovak Republic” (RAD Reasons and decision at para 8). The
RAD then reviewed applicable case law on state protection, such as the
presumption of state protection, as articulated by the Supreme Court of Canada
in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689.
[12]
Concerning the police’s inaction following the
Applicant’s attack by a skinhead, the RAD found that there was no evidence that
the lack of investigation was due to the Applicant’s Roma ethnicity. Rather,
the RAD concluded that this was due to the fact the Applicant could not
identify her assailant. The RAD also noted that “state
protection is never perfect and the failure of one police officer or one police
department to investigate a crime does not, by itself, determine that there is
no state protection” (RAD Reasons and decision at para 19).
[13]
The RAD acknowledged that Roma people face
severe difficulties and discrimination with respect to housing, employment,
schooling and health care, but that no evidence was presented in the case at
hand to “support the contention that the Slovak
authorities took active steps to prevent the [Applicant] from obtaining
employment in their respective professions or denying them housing or health
care” (RAD Reasons and decision at para 21).
[14]
The RAD further stated that the authorities have
“taken proactive steps to address the issues of
discrimination and violence targeting minorities, in particular the Roma”
(RAD Reasons and decision at para 30) and that there is evidence of “programs in place resulting in improvements to the lives of
Roma” (RAD Reasons and decision at para 35). Additionally, the RAD explained
that the “fact that Roma are discriminated against in
the Slovak does not mean that there is never any state protection for them or
that they are not required to seek that protection prior to seeking refuge in
another country” (RAD Reasons and decision at para 44).
[15]
The RAD concluded that the Applicant failed to
provide clear and convincing evidence that the Slovakian state is unwilling or
unable to provide her with adequate protection.
III.
Issue
[16]
While the Applicant has raised a number of
issues with respect to the RAD decision, the determinative issue is the RAD’s
assessment of the availability of state protection.
IV.
Analysis – State Protection Test
[17]
The Applicant argues that the RAD erred by
applying the wrong test in evaluating state protection.
[18]
The Applicant claims that the RAD applied the “serious efforts” test to the state protection analysis,
as indicated by the RAD’s use of language in paragraphs 14, 15, 24, 36 and 43
of the decision where phrases such as “has taken”
or “is taking” is used to describe the state’s
efforts to provide protection.
[19]
The Applicant argues that the proper analysis
for state protection involves the examination of whether there exists adequate
state protection at the operational level. The correct test is explained in Majoros
v Canada (Citizenship and Immigration), 2013 FC 421, by Justice Zinn as
follows:
[12] I adopt Justice Mosley’s statement
of the law in this regard in Meza Varela v Canada
(Minister of Citizenship & Immigration), 2011
FC 1364 at para 16: “Any efforts must have ‘actually translated into adequate
state protection’ at the operational level.” Or, as I put it in Orgona v Canada (Minister of Citizenship and Immigration), 2012 FC 1438 at para 11: “Actions, not good intentions prove that
protection from persecution is available.” At the same time, state protection
need not rise to the level of perfection. That a state is unable to provide
adequate protection, assessed at the operational level, can be proved with
whatever evidence is sufficiently convincing, including documentary evidence.
[20]
Here, in considering the issue of state
protection, the RAD repeatedly refers to “state
efforts” and to “serious efforts” taken
by the state to provide protection. While the RAD identifies the government’s
steps and that serious efforts have been made to address the issues of
discrimination and violence against minorities (including the Roma population),
the RAD failed to address the applicability and the effectiveness of these
programs and efforts.
[21]
This Court has stated that “adequate protection” and “serious
efforts at protection” are not the same thing (Kumati v Canada
(Citizenship and Immigration), 2012 FC 1519 [Kumati] at para 27).
Here, the RAD was charged with evaluating the “empirical
reality of the adequacy of state protection” (see Kumati at para
28).
[22]
As the correct legal test to apply is whether
state protection actually resulted in operational effectiveness, the “failure to address the adequacy of state efforts at the
operational level is a reviewable error” (see Castro v Canada
(Citizenship and Immigration), 2017 FC 13 at para 11).
[23]
Here, although the RAD referenced the
operational efforts at paragraph 35 of the decision, as follows: “I note there is also some evidence that at the operational
level the state is taking action to address the discrimination and violence
targeting the Roma population” (see RAD Reasons and decision at para
35). This, at best, appears to be a passing reference to operational
effectiveness.
[24]
I agree with the Applicant that the RAD applied
the wrong test in considering the issue of state protection. The decision is
therefore not reasonable.
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