Docket: IMM-2401-17
Citation:
2017 FC 1094
Ottawa, Ontario, December 4, 2017
PRESENT: The
Honourable Mr. Justice Manson
|
BETWEEN:
|
|
PATRICK EROS
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[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 made by a Senior Immigration Officer (the
“Officer”) refusing the Applicant’s Pre-Removal Risk Assessment (“PRRA”)
application.
II.
Background
[2]
The Applicant was born and raised in
Czechoslovakia and is a citizen of the Czech Republic. He is of Roma ethnicity
and claims to have experienced many years of discrimination and attacks on the
basis of that ethnicity.
[3]
He was bullied and beaten at school during his
youth and experienced racism and threats as he grew older. He struggled to find
employment and was told by employers they would not hire Roma.
[4]
Anti-Roma sentiment grew after the fall of
communism in the 1990s. There were large demonstrations and skinheads
terrorized and attacked Roma. Whenever there was a soccer match in the
Applicant’s town, the Roma would not go outside for fear of being attacked. On
one occasion, he attempted to buy tickets to a soccer match but was told by a
group of men to leave or he would be beaten.
[5]
The Applicant became depressed due to his
discrimination and in 2002, he began receiving a monthly disability benefit of
about 5200 CZK ($290 CAD), but found it difficult to survive on that income.
[6]
In November 2007, the Applicant’s daughter was
born.
[7]
In August 2008, the Applicant went to the United
Kingdom (“UK”), where his sister, brother and cousin lived, in an attempt to
find employment. In November 2009, while at a restaurant with his sister and
brother, an incident occurred between the Applicant’s sister and another woman.
The woman lifted a chair as if she was going to throw it at the Applicant’s
sister, so he punched her in the face. A brawl broke out and the Applicant was
charged with assault causing bodily harm.
[8]
The Applicant returned to the Czech Republic in
March 2010 to see his daughter, but could not find work as a Roma.
[9]
In August 2011, the Applicant was beaten by a
group of skinheads during an anti-Roma demonstration. He was at a restaurant
with friends and family when the skinheads began taunting them and telling them
to leave. A glass was thrown at his head and he was kicked and punched. By the
time police arrived, the skinheads had fled. The police collected information
and referred the Applicant to a hospital. The Applicant never received an
official report and does not know what happened with the investigation.
[10]
The Applicant returned to the UK in May 2012. He
was convicted on the previous charge of assault causing bodily harm. He received
a sentence of 112 days and served 56 days.
[11]
The Applicant was released in September 2012 and
returned to the Czech Republic. His disability had been cut-off and he had
nowhere to live. In December 2012, he began receiving the benefit again and
rented a room in a hostel.
[12]
The Applicant returned to the UK in June 2014
but was unable to find any work. He was unable to continue living with family
members and ended up homeless. He stayed in shelters or slept on the street. At
one shelter he got into an altercation with another man. He was charged with
threatening abusive or insulting words or behaviour and spent a night in
detention.
[13]
Subsequently, he had nowhere to live and no job
prospects. A charitable organization offered to help him, but allegedly insisted
he return to the Czech Republic, paid for his airfare and set up supports upon
his arrival. However, he still could not find a job. His mental health
deteriorated and he was hospitalized for 10 days in the spring of 2015. The nurses
made fun of him and insulted him.
[14]
In June 2015, the Applicant travelled to Canada.
He made a refugee claim upon arrival and disclosed his criminal conviction from
the UK. The Canada Border Services Agency prepared an inadmissibility report
based on that conviction and the refugee claim was suspended. On April 13,
2016, a member of the Immigration Division (“ID”) found the Applicant was
inadmissible. The Federal Court denied leave for judicial review of that
decision and the Applicant’s refugee claim was terminated.
[15]
On May 19, 2016, the Applicant was served with a
PRRA application. He retained counsel and made submissions in June 2016.
[16]
On November 30, 2016, the Officer refused the
Applicant’s PRRA application. The Officer found the Applicant did not meet the
definition of a Convention refugee or a person in need of protection as defined
in sections 96 and 97 of the IRPA.
[17]
The Officer noted that the Applicant’s UK
conviction rendered him inadmissible to Canada under paragraph 36(1)(b) of the
IRPA and ineligible to make a refugee claim under paragraph 112(3)(b) of the
IRPA, but subparagraph 113(e)(i) of the IRPA provided that the Applicant’s PRRA
application would be considered on the basis of sections 96 to 98 of the IRPA.
[18]
The Officer acknowledged the Applicant’s history
of discrimination, his fear of returning to the Czech Republic, the incidents
that led him to seek protection outside of that country, the letters that
supported the Applicant and corroborated the 2011 attack, and the
country-conditions evidence that was submitted.
[19]
The Officer also acknowledged that
discrimination against Roma was a serious problem in the Czech Republic and
that experiences of discrimination may cumulatively rise to the level of
persecution in individual cases.
[20]
The Officer accepted that the Applicant had
experienced discrimination in education, but had no plans to attend school in
the future and therefore was unlikely to experience any further discrimination
in the education system.
[21]
As well, the Officer accepted that the Applicant
had experienced significant discrimination in finding employment but found
there were other facets of his life where there was no evidence of
discrimination. For example, when his injuries were treated at a hospital, when
he was assessed for depression or when he obtained disability benefits.
[22]
Furthermore, the Officer found there was
adequate state protection. The Czech Republic had appropriate institutions in
place, took action to protect Roma peoples and had arrived and investigated
when the Applicant was attacked in 2011.
[23]
Finally, the Officer noted that the Applicant
had willingly reavailed himself of his state’s protection on three occasions
and this indicated a lack of subjective fear.
[24]
The Officer concluded that the Applicant’s
experiences of discrimination did not cumulatively rise to the level of
persecution and there was only a mere possibility of persecution upon his
return. As well, it was unlikely that he would experience a danger of torture,
risk to life or risk of cruel or unusual treatment or punishment.
[25]
On May 30, 2017, the Applicant applied for
judicial review of the Officer’s decision.
A.
Preliminary Matter
[26]
The style of cause should be amended to read “The Minister of Citizenship and
Immigration” instead of “Minister of Immigration,
Refugees and Citizenship” pursuant to subsection 4(1) of the IRPA:
4 (1) Except
as otherwise provided in this section, the Minister of Citizenship and
Immigration is responsible for the administration of this Act.
III.
Issues
[27]
The issues are:
- Did the Officer
err in assessing whether the Applicant’s experiences of discrimination
cumulatively rose to the level of persecution?
- Was the
Officer’s assessment of the Applicant’s subjective fear reasonable?
- Did the Officer use the correct test for state protection and
was his assessment of state protection reasonable?
IV.
Standard of Review
[28]
The Applicant argues that the Officer’s
articulation of the tests for state protection and persecution is reviewable on
a correctness standard and that the ensuing determination of whether the
Applicant established a well-founded fear of persecution or rebutted the
presumption of state protection is reviewable on a reasonableness standard (Ruszo
v Canada (Minister of Citizenship and Immigration), 2013 FC 1004 at paras
16-23). The Respondent counters that the tests for statement protection and
persecution are mixed questions of fact and law, and should be reviewed on the
reasonableness standard, but regardless of which standard is applied, the
Applicant has failed to meet that standard. I agree with the Applicant on the
applicable tests for review.
V.
Analysis
A.
Did the Officer err in assessing whether the
Applicant’s experiences of discrimination cumulatively rose to the level of
persecution?
[29]
The Applicant submits that the Officer did not
reasonably assess whether the Applicant’s experiences of discrimination
cumulatively rose to the level of persecution: he did not consider the totality
of the experiences; failed to explain why they did not rise to the level of
persecution; and failed to consider the objective evidence in relation to those
experiences.
[30]
The Respondent submits that the Applicant had
not established that his experienced rose to the level of persecution. The
Officer reasonably considered the totality of the experiences as well as the
documentary evidence and explained why, in the Applicant’s case, the
discrimination did not rise to the level of persecution.
[31]
In cases where the evidence establishes a series
of events characterized as discriminatory, but not persecutory, decision-makers
must consider the cumulative nature of that conduct in order to determine
whether it constitutes persecution (Canada (Minister of Citizenship and
Immigration) v Munderere, 2008 FCA 84 at paras 41-42). It is an error to
merely state that instances of discrimination have been considered cumulatively;
decision-makers should explain why those instances, in the aggregate, do not
amount to persecution (Bledy v Canada (MCI), 2011 FC 210 at paras 31-34).
[32]
The Officer was aware of his duty to assess the
cumulative effects of discrimination. He concluded:
In light of all this evidence, I do not
find, on a balance of probabilities, that the applicant’s experiences of
discrimination cumulatively rise to the level of persecution.
[33]
The Officer provided reasons in support of that
conclusion. He acknowledged that the documentary evidence showed discrimination
against Roma was a serious problem and could rise to the level of persecution;
however, it was necessary to assess the experiences of applicants in each
individual case.
[34]
The Officer accepted that the Applicant had
suffered significant discrimination in employment. In terms of education, the
Applicant had no plans to attend school in the future and therefore was
unlikely to experience any further discrimination in the education system.
Furthermore, there were facets of the Applicant’s life with no evidence of
discrimination: being treated at a hospital for injuries; being assessed for
depression; and obtaining disability benefits.
[35]
As well, the Officer accepted that the Applicant
had experienced discrimination in his “general sense of
safety” and “in the social acceptance of
anti-Roma demonstrations and marches” but found there was adequate state
protection. Furthermore, the Officer found the Applicant had willingly reavailed
himself of his state’s protection on three separate occasions and
notwithstanding the reasons given for reavailment, this indicated a lack of
subjective fear.
[36]
The Officer’s analysis was reasonable. He did
not fail to consider the cumulative effects of discrimination, nor did he make
his finding without regard to the evidence.
B.
Was the Officer’s assessment of the Applicant’s
subjective fear reasonable?
[37]
The Applicant submits that the Officer’s
assessment of subjective fear was unreasonable because it was based on
reavailment of state protection, without any consideration of the Applicant’s
explanations and specific circumstances.
[38]
The Respondent submits that the Applicant’s
justifications for returning home are not sufficient to explain why he left a
safe country to return to a place where he had a well-founded fear of
persecution. The Officer reasonably found those explanations to be
unsatisfactory.
[39]
This Court has held that delay in leaving a
country should not be used as a significant factor in finding a lack of
subjective fear, if a claim is based on cumulative persecution (Ibrahimov v
Canada (Minister of Citizenship and Immigration), 2003 FC 1185 [Ibrahimov]
at para 19):
Furthermore, in my opinion, when a claim is
based on a number of discriminatory or harassing incidents which culminate in
an event which forces a person to leave his country, then the issue of delay
cannot be used as a significant factor to doubt that person's subjective fear
of persecution. Cumulative acts which may amount to persecution will take time
to occur. If a person's claim is actually based on several incidents which
occur over time, the cumulative effects of which may amount to persecution,
then looking to the beginning of such discriminatory or harassing treatment and
comparing that to the date on which a person leaves the country to justify
rejection of the claim on the basis of delay, undermines the very idea of
cumulative persecution.
[40]
I do not agree that the decision in Ibrahimov
applies to the facts of this case. The Officer was not concerned with delay in
doubting subjective fear, but with the repeated returns to the Czech Republic
from the UK, notwithstanding the reasons given for doing so.
[41]
While I may not necessarily agree with the
Officer, it is not the Court’s role to reweigh the evidence and the Officer’s
decision with respect to subjective fear was reasonable.
C.
Did the Officer use the correct test for state
protection and was his assessment of state protection reasonable?
[42]
The Applicant submits that the Officer
incorrectly assessed whether the state is making serious efforts to protect
Roma rather than assessing whether those efforts translate into actual
protection. Furthermore, the Officer ignored evidence that demonstrated a lack
of adequate state protection.
[43]
The Respondent submits that there was no clear
and convincing evidence that the authorities in the Czech Republic are
unwilling or unable to protect the Roma; therefore, the Applicant failed to
rebut the presumption of state protection.
[44]
Applicants have the burden of showing inadequate
state protection (Carrillo v Canada (Minister of Citizenship and Immigration),
2008 FCA 94 at paras 17-19). There is a presumption that state
protection is available in an applicant’s country of origin, particularly when
the state is democratic, and clear and convincing evidence is needed to rebut
that presumption (Canada (Attorney General of Canada) v Ward, [1993] 2
SCR 689 at 724-725).
[45]
The applicable test for state protection is
whether it is adequate at the operational level. Such an analysis requires an
assessment not only of state efforts, but also the actual results (Kovacs v
Canada (Minister of Citizenship and Immigration), 2015 FC 337 [Kovacs]
at para 71). What is “adequate” will vary with
the country and the circumstances (Kovacs at para 72).
[46]
The Officer applied the correct test. He
concluded:
From the evidence before me, I find
insufficient evidence to demonstrate that the applicant would not receive
adequate state protection if he were to require it.
[47]
The Officer not only considered the state’s
efforts to protect Roma, but results associated with those efforts.
[48]
He noted that the Czech Republic had appropriate
institutions in place to provide its citizens with state protection. It had a
police force that maintains public order, a government body that oversees the
police and investigates allegations of misconduct, and it accepted and
prosecuted reports of hate crimes.
[49]
The Officer also considered whether those
efforts produced actual results. He found that police generally provided
adequate protection to Roma communities by policing demonstrations and managing
participants, including detaining those who tried to march into the
neighbourhoods or disturb the peace. He also found that crime within the police
force was decreasing, that hate crimes were being prosecuted and that anti-Roma
activity is decreasing.
[50]
Furthermore, the Officer referred to the
Applicant’s experience with police after being assaulted by skinheads in a
restaurant. The police showed up when called, interviewed all participants and
took down their information. They told the Applicant they were investigating
the case, and it was not clear whether the Applicant or anyone else followed up
with that investigation.
[51]
The Applicant argues the Officer “failed to address the many instances in which police were
not able to provide adequate protection” but does not cite specific
examples. Rather, the documentary evidence supports the Officer’s findings. For
example, a report by Amnesty International focuses on violent anti-Roma marches
that occurred in 2013 and 2014. The report condemns the state’s “ambivalent” response but outlines the police response
to those marches. The police intervened, installed barriers, prevented
protestors from entering the streets, blocked access to roads and investigated
and arrested protesters. As another example, a report by the US Department of
State showed that police detained extremists and took other preventative
measures during an attempted march in a Roma neighbourhood.
[52]
The Officer balanced the documentary evidence
relating to both positive and negative circumstances surrounding adequate
protection for Roma in the Czech Republic.
[53]
The Officer’s finding on state protection was
reasonable.
Email this Content