Docket: IMM-5068-16
Citation:
2017 FC 1035
Ottawa, Ontario, November 10, 2017
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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JAROSLAV KOKY,
DARINA KOKYOVA, NORA KOKYOVA AND SOFIA KOKYOVA
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
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AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicants, Mr. Jaroslav Koky, his wife, Ms.
Darina Kokyova, and their minor children, Nora and Sofia, are all ethnic Roma
from the Slovak Republic. They made a refugee claim in Canada, alleging to fear
returning to Slovakia because of the systemic persecution of Romani people in
that country, further compounded by the lack of state protection afforded to
them. They also claimed that they suffered a number of incidents of
discrimination and violence between 2009 and 2015, which cumulatively amounted
to persecution.
[2]
A panel of the Refugee Protection Division [RPD]
of the Immigration and Refugee Board of Canada dismissed their claim for lack
of credible evidence and failure to provide sufficient proof that state
protection was not available to them in Slovakia. The Koky family appealed the
RPD’s decision to the Refugee Appeal Division [RAD]. In a decision issued in
November 2016 [Decision], the RAD dismissed their appeal and confirmed the
RPD’s findings on credibility and state protection. The RAD notably concluded
that the Koky family had not rebutted the presumption of state protection.
[3]
The Koky family now seeks judicial review of the
RAD’s Decision. They argue that the RAD’s conclusions on state protection are unreasonable
because the RAD erred in assessing an incident of persecution that occurred in
2015, in failing to analyze their claims of persecution on a cumulative basis,
and in determining that state protection was adequate in Slovakia. They ask this
Court to quash the Decision and to send it back for redetermination by a
differently-constituted panel. The determinative issue before the RAD was the
availability of state protection in Slovakia and, in this application for
judicial review, the Koky family focused their challenge of the Decision on this
point.
[4]
Having considered the evidence before the RAD and
the applicable law, I can find no basis for overturning the RAD’s Decision. The
RAD’s findings on the issue of state protection were detailed and responsive to
the evidence, and the outcome is defensible based on the facts and law. The
Decision falls within the range of possible, acceptable outcomes and is not
unreasonable. There are no sufficient grounds to
justify this Court’s intervention, and I must therefore
dismiss the Koky family’s application for judicial review.
II.
Background
A.
The Decision
[5]
In its analysis of the merits of the appeal, the
RAD briefly dealt with the RPD’s adverse credibility findings relating to the
various incidents of discrimination and persecution alleged by the Koky family,
before turning to its analysis of state protection.
[6]
The RAD provided a detailed review of the issue
of state protection before concluding that the Koky family had not rebutted the
presumption of state protection. The RAD agreed that the evidence clearly
showed that the Roma still suffer from higher rates of unemployment and lower
education achievement in Slovakia, and that they are excluded from regular life
in terms of housing and healthcare. However, the RAD found that the documentary
evidence also indicated that the state is making serious efforts to remedy the
situation, despite slow progress. The RAD acknowledged that it is unreasonable
to expect that these measures should have prevented or eliminated all racism or
acts of violence related to race.
[7]
Further to its review of the evidence, the RAD
found that the preponderance of objective evidence regarding current country
conditions suggests that, although not perfect, state protection in the Slovak
Republic is adequate for the victims of crimes; that the state is making
serious efforts to address the problems of criminality; that concrete measures
and results are obtained; and that the police are both willing and able to
protect victims. The RAD further noted that police corruption and deficiencies,
although existing and noted by the RPD, are not systemic.
[8]
With respect to a 2015 incident during which Mr.
Koky was allegedly physically assaulted by ethnic Slovaks and which he later
reported to the police, the RAD observed that there was no evidence as to why
the police closed the investigation into the incident shortly after it being
reported. But, as the RAD reiterated, local failures to provide effective
policing do not amount to a lack of state protection unless they are part of a
pattern of the state’s inability or refusal to provide protection (Zhuravlvev
v Canada (Minister of Citizenship and Immigration), [2000] 4 FC 3 (FCTD)).
In effect, the RAD said, evidence that the protection being offered is not
perfect does not amount to clear and convincing proof of the state’s inability
to protect its citizens, as no government can guarantee protection for all
citizens at all times (Zalzali v Canada (Minister of Employment and
Immigration), [1991] 3 FC 605 (FCA)).
[9]
The RAD further noted that a refugee claimant
must do more than approach one police officer unsuccessfully before deciding
that state protection would not be forthcoming. There is an onus on the
claimant to exhaust all courses of action reasonably available to him or her (Canada
(Minister of Citizenship and Immigration) v Kadenko, [1996] FCJ No
1376 (FCA) (QL)). In particular, the RAD found no sound rationale for the Koky
family’s failure to report a first incident of persecution which they claim
occurred in 2009. Nor was their failure to report consistent with a
well-founded fear or indicative of any genuine attempt to attempt to obtain
state protection. Indeed, the RAD observed that, in the absence of a compelling
explanation, a failure to pursue state protection opportunities within the home
state will usually be fatal to a refugee claim, at least where the state is a
functioning democracy with a willingness and apparatus necessary to provide a
measure of protection to its citizens (Camacho v Canada (Citizenship and
Immigration), 2007 FC 830). The RAD concluded that the same applies to
another incident that allegedly occurred in 2014 between Mr. Koky’s daughter,
Nora, and a group of antagonistic classmates. The RAD found that there was no
evidence that the incident was reported to school authorities or police, nor
evidence of it being otherwise racially motivated.
[10]
In sum, the RAD found that the Koky family’s
evidence did not show that they sought, and were then subsequently denied,
state protection in Slovakia. The RAD also analyzed the evidence of general
conditions in the country and the state’s ability to protect its citizens, and
determined that active steps were taken to combat deficiencies, with signs of
real progress and results. In the end, the RAD concluded that the Koky family
had failed to establish, on a balance of probabilities, that state protection
is inadequate in the Slovak Republic, and that state protection would not be
reasonably available to them.
B.
The standard of review
[11]
The applicable standard of review for the issues
raised in the present case has already been determined in the jurisprudence. As
a result, there is no need to proceed to an analysis to identify the
appropriate standard of review (Dunsmuir v New Brunswick, 2008
SCC 9 [Dunsmuir] at para 62). For the analysis of the cumulative basis
for persecution, the standard of reasonableness applies (Galamb v Canada
(Citizenship and Immigration), 2016 FC 1230 [Galamb] at para 12; Dubat
v Canada (Citizenship and Immigration), 2016 FC 1061 at para 35; Smirnova
v Canada (Citizenship and Immigration), 2013 FC 347 at paras 19, 25).
Similarly, the issue of the adequacy of state protection is to be reviewed
under the reasonableness standard as it involves questions of mixed fact and
law (The Minister of Citizenship and Immigration v Flores Carrillo, 2008
FCA 94 [Flores Carrillo] at para 36; Hinzman v Canada (Citizenship
and Immigration), 2007 FCA 171 [Hinzman] at para 38; Fares
v Canada (Citizenship and Immigration), 2017 FC 797 at paras 19-22; Galamb
at para 12). Since the Immigration and Refugee Protection Act, SC
2001, c 27 is the enabling statute that the RAD officers are mandated to
enforce, its interpretation and application fall within their core area of
expertise. In such circumstances, a high degree of deference is owed to the RAD’s
factual findings and assessment of the evidence.
III.
Analysis
[12]
The Koky family claims that the RAD made several
reviewable errors in its analysis of state protection. They identify three main
ones. First, they argue that the RAD erred in stating that no evidence existed
as to the reason why the police discontinued its investigation on the 2015
incident involving Mr. Koky. Second, they submit that the RAD failed to
consider the cumulative effect of discrimination as amounting to persecution.
Third, they contend that the RAD solely focused on the efforts of the Slovak
state but omitted to consider whether the state protection was adequate and
operationally effective. They submit that the evidence did not allow the RAD to
conclude as it did on the effectiveness of state protection in Slovakia.
[13]
I disagree and do not share the views of the
Koky family on the RAD’s assessment of state protection. I instead find that,
when viewed as a whole, the RAD’s state protection analysis was comprehensive,
anchored in the evidence and reflective of the correct test to be applied.
[14]
It is not disputed that the appropriate test in
a state protection analysis commands an assessment of its adequacy at the
operational level (Galamb at paras 32-37). The
state protection test must focus not only on the efforts of the state but also
on actual results: “[i]t is
what state protection is actually provided at the present time
that is relevant” (Hercegi v Canada
(Citizenship and Immigration), 2012 FC 250 at paras 5-6 [emphasis in
original]). A state protection analysis must not just consider
governmental aspirations. Efforts made by a government to achieve state
protection may, of course, be relevant to the question of whether operational
adequacy has been achieved. However, even if serious and significant, efforts
are not enough. Actual results in terms of what is concretely accomplished by
the state must be assessed and demonstrated (Kovacs v Canada (Citizenship
and Immigration), 2015 FC 337 at paras 71-72). But one must still keep in
mind that state protection is a relative concept, in that state protection
needs not be perfect in order to be effective; it simply has to be “adequate” (Flores Carrillo at para 30).
[15]
Moreover, there is a general presumption that
the state is able to provide protection to its citizens, and it is up to the refugee
claimants to provide clear and convincing evidence of the state’s inability to
do so (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at 724). It is
not enough for claimants to merely show that their government has not always
been effective at protecting citizens in their particular situation (Canada
(Minister of Employment and Immigration) v Villafranca, [1992] FCJ No 1189
(FCA) (QL) at para 7). As stated by the Federal Court of Appeal in Hinzman,
“refugee protection is meant to be a form of surrogate
protection to be invoked only in those situations where the refugee claimant
has unsuccessfully sought the protections of his home state” (Hinzman
at para 41). As such, “the fundamental requirement in refugee law that claimants
seek protection from their home state before going abroad to obtain protection
through the refugee system” (Hinzman at para 62). In the case of a
developed democracy (as is the situation here for
Slovakia), the claimant is faced with the burden of
proving that he or she exhausted all the possible protections offered in the
country of origin. It is also trite law that applicants seeking refugee
protection cannot simply claim that they believe or fear that state protection
will not be forthcoming (Moya v Canada (Citizenship and Immigration),
2016 FC 315 at para 75; Ruszo v Canada (Citizenship and Immigration),
2013 FC 1004 at para 33). Such a claim must be supported by evidence.
[16]
I find no reviewable error in the RAD’s
statement of the law surrounding state protection, as it echoes these
principles. Rather, the question for the Court’s consideration is whether the
RAD’s conclusion that the Koky family had not rebutted the presumption of state
protection was reasonable in the context of the country condition evidence
applicable to the Slovak Republic, and the Koky family’s own evidence on their
personal experiences. I conclude that it was.
[17]
A review of the RAD’s reasons reveals that the
RAD reviewed the evidence on state protection thoroughly over nearly 30
paragraphs in the Decision. The RAD’s Decision clearly indicates that it
considered the evidence on state protection objectively, both from the
country’s perspective and from the Koky family’s specific encounters with the
Slovak state, before finding that, while imperfect, the state protection was
adequate in Slovakia. I am satisfied that, in this case, the RAD considered not
only the efforts of Slovakia to offer state protection to the Koky family, but
also looked at the results of the measures undertaken in terms of
investigations, prosecutions, police effectiveness and convictions in the
treatment of Romani people. There was concrete evidence of the police actually offering
protection. As such, the RAD’s references to “serious
efforts” as a measure of assessment of the adequacy of state protection does
not amount to a reviewable error (Cina v (Canada (Citizenship and
Immigration), 2011 FC 635 at para 69; Sholla v Canada (Citizenship and
Immigration), 2007 FC 999 at paras 8-9).
[18]
Conversely, the RAD acknowledged that the
evidence relating to the adequacy of state protection in the country was mixed,
and that shortcomings and deficiencies still translated into discrimination
against the Roma. However, in the end, on the basis of the evidence before it
and considering the repeated failures of the Koky family to seek protection,
the RAD gave more weight to the documentary evidence relating to the effectiveness
and adequacy of state protection than to the concerns expressed by the Koky family
or to the documentary evidence pointing to some deficiencies in the state
actions. Further to my review of the Decision and of the record before the RAD,
I am not convinced that this assessment was unreasonable.
[19]
In a case where state protection is an issue,
the real question is whether, considering the whole of the evidence about the
state’s capacity to protect its citizens, the refugee claimants will be exposed
to a serious risk of persecution if returned to their home country. Given the
evidence on the record, I find that the RAD could reasonably conclude that the
Koky family had failed to satisfy that test and to rebut the presumption of
state protection.
[20]
In the Decision, the RAD did acknowledge the
2015 incident as proof of discrimination against Mr. Koky, but did not elevate
it to proof of persecution as the incident was not, in the panel’s view,
symptomatic of a systemic failure by the state to provide protection. As
acknowledged by the Koky family, this fact was not ignored and was actually
mentioned in the RAD’s reasons when discussing the documentary evidence. In
light of the expansive analysis covering a number of elements of state
protection in Slovakia, and a large amount of documents, it was reasonable for
the RAD to arrive at this conclusion. Nor am I persuaded that the RAD failed to
account for the cumulative effects of discrimination suffered by the Koky
family generally. In fact, the Decision reveals that the RAD reviewed the
discrimination against the Roma in housing, education, employment and
healthcare on an individual basis and on a cumulative basis. As to the
documentary evidence, the RAD considered a voluminous amount of documents and
information. It relied more heavily on certain documentary evidence, and
preferred that evidence to the references provided by the Koky family. This
does not amount to an unreasonable finding.
[21]
When reviewing a decision on the standard of
reasonableness, the analysis is concerned “with the
existence of justification, transparency and intelligibility within the
decision-making process”, and the RAD’s findings should not be disturbed
as long as the decision “falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir at para 47). In conducting a
reasonableness review of factual findings, it is not the role of the Court to
reweigh the evidence or the relative importance given by the decision-maker to
any relevant factor (Kanthasamy v Canada (Citizenship and Immigration),
2014 FCA 113 at para 99). Under a reasonableness standard, as long as the
process and outcome fit comfortably with the principles of justification,
transparency and intelligibility, and the decision is supported by acceptable
evidence that can be justified in fact and in law, a reviewing court should not
substitute its own view of a preferable outcome (Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland
Nurses] at para 17). The issue is neither whether the reviewing court would
have reached the same conclusion as the administrative tribunal nor whether the
conclusion made by the tribunal is correct (Majlat v Canada (Citizenship and
Immigration), 2014 FC 965 [Majlat] at paras 24-25). Deference means
that tribunals such as the RAD must be afforded latitude to make decisions in
their specialized field of expertise when “their
decisions are understandable, rational and reach one of the possible outcomes
one could envisage legitimately being reached on the applicable facts and law”
(Majlat at para 24).
[22]
As such, the arguments put forward by the Koky
family in this case simply express their disagreement with the RAD’s assessment
of the evidence on state protection and ask the Court to prefer their own
reading to that of the RAD. In doing so, they are inviting the Court to reweigh
the evidence before the RAD and to substitute itself for the decision-maker. Again,
in conducting a reasonableness review of factual findings, it is not the role
of the Court to reassess the relative importance given by the decision-maker to
any relevant factor or piece of evidence.
[23]
The Koky family’s further contention to the
effect that the RAD failed to consider all the evidence submitted in favour of
a finding of persecution against them is equally unconvincing. It is trite law
that decision-makers are presumed to have considered each piece of evidence
before them; failure to refer to every element, such as Amnesty International
reports, does not in and of itself constitute an error (Newfoundland Nurses at
para 16; Cepeda-Gutierrez v Canada (Citizenship and Immigration), [1998]
FCJ No 1425 (FCTD) (QL) [Cepeda-Gutierrez] at paras 16-17). It is only
when a decision-maker is silent on evidence clearly pointing to an opposite
conclusion that the Court may intervene and infer that the decision-maker overlooked
contradictory evidence when making its findings of fact (Ozdemir v Canada
(Minister of Citizenship and Immigration), 2001 FCA 331 at paras 9-10; Cepeda-Gutierrez
at paras 16-17). However, Cepeda-Gutierrez does not stand for the proposition that the mere
failure of a decision-maker to refer to an important piece of
evidence that runs contrary to the decision-maker’s
conclusion necessarily renders a decision unreasonable and results in the decision being overturned. To
the contrary, it is only where the non-mentioned evidence is critical and
squarely contradicts the decision-maker’s conclusion that the reviewing court
may decide that its omission means that the decision-maker did not have regard to the material
before it.
[24]
In the case at bar, the RAD conducted a
wide-ranging and detailed analysis of the documentary evidence before it. The
RAD engaged with the evidence, referred to several reports, was cognizant of
the personal incidents involving the Koky family and was aware of the
contradictions and deficiencies of state protection in Slovakia. The
decision-maker did not ignore or fail to consider the evidence but, after
weighing all the evidence on the record, it came to the conclusion that state
protection was adequate. For example, the RAD referred to the legal framework
in place in Slovakia, to instances where police officers were dismissed
following incidents involving Romani victims, to the National Roma Integration
Strategy and its results in terms of education, employment, healthcare and
housing, to government funds being granted to improve living conditions for the
Roma, to the availability of a complaint process in relation to the conduct of
police officers, and to improvements in the police response and concrete
examples supporting this. Concrete examples of state protection being effective
at an operational level were numerous. The RAD did not omit to incorporate
contradictory evidence in its assessment; the RAD instead acknowledged, at many
junctures, the ongoing difficulties faced by the Roma community in Slovakia,
the mixed evidence and the persistent challenges that plague some of the
policies and programs being implemented. The evidence mentioned was not
cherry-picked in order to support a positive finding of state protection.
Rather, it is apparent that all the evidence was considered by the RAD, but it
was insufficient to rebut the presumption of state protection. I find that the RAD’s
reasoning is nuanced and transparent, and supports the finding that state
protection is imperfect but nonetheless “adequate”,
which remains the accepted standard (Flores Carrillo at para 30).
[25]
Reasons are to be read
as a whole, in conjunction with the record (Agraira v Canada (Public Safety
and Emergency Preparedness), 2013 SCC 36 at para 53; Construction Labour
Relations v Driver Iron Inc, 2012 SCC 65 at para 3). A judicial review is not a “line-by-line
treasure hunt for error” (Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at para 54). The Court should instead approach the reasons
with a view to “understanding,
not to puzzling over every possible inconsistency, ambiguity or infelicity of
expression” (Canada
(Minister of Citizenship and Immigration) v Ragupathy, 2006 FCA 151 at para
15). When read as a whole, the RAD’s Decision shows
that the panel properly assessed all the necessary factors and provided an
analysis of the evidence presented. The intervention of this Court is not
warranted.
[26]
I pause to underline that this is not a
situation where the decision-maker equated the availability of protection from
institutions other than the police with adequate state protection, as was the
case in Csoka v Canada (Citizenship and Immigration), 2016 FC 1220. In
the current case, the evidence of state protection in Slovakia revolved around
police activities.
[27]
I would finally add that there is no merit to
the Koky family’s argument that the RAD should have followed the decision Stojkova
v Canada (Citizenship and Immigration), 2017 FC 77 [Stojkova]. It is
a well-established principle that each case must be decided on its own facts
and merits. There are numerous other cases where this Court has dismissed
applications for judicial review and upheld state protection determinations
with regard to the Roma from Slovakia and other countries (Galamb at
paras 28-54; Conka v Canada (Citizenship and Immigration), 2015 FC 596
at paras 29-31; Balaz v Canada (Citizenship and Immigration), 2015 FC
537 at paras 16-23). As pointed out in Kocko v Canada (Minister of
Citizenship and Immigration), 2017 FC 803 at paras 29-30, the documentary
evidence of Roma suffering discrimination and violence in Slovakia as well as of
police mistreatment of Roma suspects and detainees that was before the Court in
Stojkova is irrelevant. Stojkova is a decision based on the
particular evidence that was before the Court in that case. In each case, the
claimants’ personal evidence of persecution needs to be linked to the country
condition evidence, and each matter must be considered on its own merits based
on the personal and country condition documents.
[28]
In sum, I conclude that the RAD’s reasons in the
current case set out an extensive analysis of the state protection documents.
The analysis is not only comprehensive, it is comprehensible. The basis for the
RAD’s conclusion is intelligible, given its review of the legal principles
surrounding state protection, its acknowledgement of the widespread persecution
of Romani people disclosed by the documentary evidence, its assessment of the Koky
family’s personal experiences and of the measures implemented by the Slovak
state, and the limited information provided by the Koky family regarding their alleged
attempts to seek state protection. I find the analysis to be transparent and
within the range of possible, acceptable outcomes by which the reasonableness
standard is defined.
IV.
Conclusion
[29]
For the above reasons, the Decision of the RAD represents
a reasonable outcome based on the law and the evidence before it. In my view,
the RAD reasonably concluded that state protection is available to the Koky
family and that they have failed to rebut the state protection presumption. On
a standard of reasonableness, it suffices if the decision subject to judicial
review has the required attributes of justification, transparency and
intelligibility. This is the case here. Therefore, I cannot overturn the RAD’s Decision
and must dismiss this application for judicial review.
[30]
Neither party proposed a question of general importance
for me to certify, and none is stated.
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