Docket: IMM-767-17
Citation:
2017 FC 803
Toronto, Ontario, September 6, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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CYRIL KOCKO
JOLANA
SIMONICOVA
VLADIMIR KOCKO
NINA KOCKOVA
SIMON KOCKO
KRISTIAN KOCKO
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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 is an application for judicial review of a
decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee
Board of Canada, dated February 10, 2017, which confirmed the decision of the
Refugee Protection Division [RPD] that the Applicants are not Convention
refugees or persons in need of protection.
[2]
As explained in greater detail below, this
application is dismissed because the Applicants have demonstrated no reviewable
error by the RAD in its analyses of their credibility or the availability of
state protection.
II.
Background
[3]
The Applicants are citizens of the Slovak
Republic of Roma ethnicity. They are a family consisting of Mr. Cyril Kocko,
his wife Ms. Jolana Simonicova, their son Vladimir Kocko, his wife Nina
Kockova, and their two children.
[4]
Their claims of persecution due to their Roma
ethnicity were heard by the RPD on July 15, 2014 and September 8, 2016. In a
decision dated September 21, 2016, the RPD rejected their claims due to adverse
credibility findings and a finding that they had not rebutted the presumption
of the availability of state protection. The Applicants appealed to the RAD,
arguing that the RPD erred in these credibility findings and in its state
protection analysis. In the decision that is the subject of this application
for judicial review, the RAD affirmed the RPD’s credibility findings and agreed
with the RPD that the Applicants had not rebutted the presumption of state
protection.
III.
Issues and Standard of Review
[5]
The Applicants raise the following issues for
the Court’s consideration:
A.
Was the RAD’s analysis of credibility
unreasonable?
B.
Was the RAD’s analysis of state protection
unreasonable?
[6]
As reflected in the articulation of the issues, the
parties agree, and I concur, that these issues are reviewable on the standard
of reasonableness.
IV.
Analysis
A.
Was the RAD’s analysis of credibility
unreasonable?
[7]
The Applicants allege that the RAD made
reviewable errors in its credibility findings with respect to three of the
Applicants: Jolana Simonicova, Vladimir Kocko, and Nina Kockova.
(1)
Jolana Simonicova
[8]
Ms. Simonicova alleges that, in the course of
surgery to remove a growth following the birth of her last child, she was
sterilized without her consent. She also notes that there is documentary
evidence to indicate that doctors in the Slovak Republic have performed
sterilization procedures on Roma women without their consent. Like the RPD, the
RAD did not find her allegations credible and gave little weight to the
allegation that she was sterilized without her consent.
[9]
In reaching this conclusion, the RAD was
influenced significantly by the fact that Ms. Simonicova did not provide any
medical reports to confirm that she had been sterilized. The Applicants argue
this was an error, given Ms. Simonicova’s explanation that medical reports are
not given to Roma people in the Slovak Republic and that, since arriving in
Canada, she has not had the financial resources to obtain such a report.
[10]
I do not find the RAD’s analysis of this issue
to be unreasonable. The RAD concluded that it was reasonable to expect that Ms.
Simonicova would have made an effort to obtain a medical report to provide
medical evidence at least that she had in fact been sterilized, and it noted that
other members of her family had been able to obtain their medical records.
While the RAD did not expressly comment on Ms. Simonicova’s explanation that
she was not in a financial position to obtain a medical report in Canada, it
noted that she had not made an effort to obtain such a record in either
country. Moreover, the RAD noted that, even if it were to accept her oral
testimony that her tubes were tied during the surgery to have the growth
removed, there was no evidence that the sterilization process was performed for
reasons other than to resolve the medical condition which necessitated the
surgery in the first place.
[11]
I read the RAD’s decision as turning on the lack
of medical evidence of either the sterilization itself or the reason it was
performed. While Ms. Simonicova provided explanations for the absence of such
evidence, the RAD noted but did not accept those explanations. Applying the deference
to the RAD’s analysis of the evidence which is mandated by the reasonableness
standard, I find no reviewable error in the RAD’s findings with respect to Ms.
Simonicova’s allegations.
(2)
Vladimir Kocko
[12]
Mr. Kocko testified that in 2012 he was
assaulted in the city of Kosice, as a result of which he attended a hospital in
Kosice and had stitches placed on his lips. The RAD had concerns about his
credibility, because his written testimony stated that the incident occurred in
2012 without giving a specific date, he stated in his oral testimony that the
incident occurred on June 26, 2012, and the report from the hospital indicated
he was first seen on April 27, 2012. Also, while Mr. Kocko testified that he
had been in Kosice only once, the hospital report indicated he was also seen
five days later on May 2, 2012 to remove the stitches. The RAD found that these
contradictions undermined Mr. Kocko’s credibility.
[13]
In challenging this finding, the Applicants note
that the RAD stated that the inconsistency as to the date of the alleged
assault was over three months, which is an error as the difference between
April 27 and June 26 is just under two months. I agree that this is a factual
error but cannot conclude that it undermines the reasonableness of the RAD’s
credibility analysis. That analysis turned on the inconsistency in dates and
the RAD’s expectation that Mr. Kocko would have remembered when he attended the
hospital in a city away from his hometown, and the number of times he attended
there, particularly since he had submitted to the RPD the hospital report which
contained this information.
[14]
The Applicants submit that the transcript of Mr.
Kocko’s testimony before the RPD demonstrates that he did not really know the
exact date and that when he testified that he did not ever return to Kosice, it
was not clear that he was being asked about whether he returned to the hospital.
I do not find these arguments to assist the Applicants. The fact Mr. Kocko
could not recall when he attended the hospital in Kosice formed part of the
RAD’s credibility analysis, and it is clear to me from reviewing the transcript
that Mr. Kocko initially testified that he did not return to the city where the
hospital was. The RAD stated that it could not agree with the responses given
by Mr. Kocko with respect to the contradictions in his evidence, and I can find
no fault with its conclusions in this regard.
[15]
The Applicants also take issue with the RAD
noting that the hospital report does not indicate that Mr. Kocko’s injury was caused
by an assault. I acknowledge the Applicants’ argument that any such statement
in the report would merely represent a hearsay repetition of what Mr. Kocko had
told hospital staff. However, I read the RAD’s point, which follows its
analysis of the credibility concerns arising from the inconsistencies in Mr.
Kocko’s evidence, as being that the hospital report did not serve to
corroborate his evidence that his injuries resulted from an assault. I find
nothing unreasonable in this analysis.
(3)
Nina Kockova
[16]
Ms. Kockova testified that when she gave birth
to her first son at the hospital she was placed in a dirty segregated room with
four other Roma women and kept there for two weeks without proper healthcare.
She distinguished her treatment from that of non-Roma women, who were placed
two to a room in clean facilities with their own washroom. She stated that she
was very sick while she was in the hospital, that she turned yellow and that “the water inside of me was not good enough”. Ms.
Kockova testified that she was not sure she would have lived if the other Roma
women in the room had not run to get the doctor to explain that something was
wrong with her.
[17]
The RAD referred to Ms. Kockova’s testimony and
allegation of discriminatory treatment but concluded from reading the
transcript of her testimony that she had been ill just prior to the delivery
date of her first child, that she gave birth two weeks after having been
admitted to the hospital, and that she was admitted two weeks prior to the due
date to be treated for her illness. The RAD found that, although the hospital
conditions may not have been acceptable to her, there was no indication that
she was discriminated against because of her Roma ethnicity.
[18]
In challenging this finding, the Applicants note
country condition evidence referring to widespread discrimination against Roma
in healthcare and the segregation of Roma women in maternity wards in several
hospitals. The Applicants also point out that Ms. Kockova’s evidence was that,
while she did not give birth to her son until October 10, 2010, her due date
was September 26, 2010 and she was admitted to the hospital on September 25,
2010. It was therefore not strictly accurate for the RAD to state that she was
admitted to the hospital two weeks prior to her due date. She submits that she
was not admitted because she was ill but rather contracted her condition while
in the hospital. In response, the Respondent notes Ms. Kockova’s evidence that
she went into the hospital, even though she was not experiencing labour pain,
because her gynecologist told her she had to go there, which the Respondent
argues supports the RAD’s conclusion that she was admitted to the hospital
because she was ill.
[19]
I find that little turns on the question whether
Ms. Kockova was ill before she entered the hospital and then worsened, as
opposed to becoming ill after she entered the hospital. Rather, as the Applicants’
counsel emphasized in both written submissions and argument, the Applicants’
point is her allegation that she did not receive proper care while in the
hospital, such that other Roma patients had to find the doctor to tell him that
something was wrong with her. In combination with the documentary evidence
establishing discriminatory treatment and segregation of Roma women in
hospitals in the Slovak Republic, the Applicants argue that it was unreasonable
for the RAD to reach the conclusion it did on this issue. However, the question
in applying the reasonableness standard is whether the RAD’s conclusion falls
outside the range of possible, acceptable outcomes, defensible on the facts and
the law. My conclusion is that it was available for the RAD to find, as had the
RPD, that the evidence did not establish that she received discriminatory
substandard healthcare because of her Roma ethnicity. The record does not
disclose a basis for the Court to interfere with this finding.
B.
Was the RAD’s analysis of state protection
unreasonable?
[20]
Even without successfully disturbing any of the
RAD’s adverse credibility determinations, the Applicants argue that it erred in
its state protection analysis. They note that the RAD accepted that Mr. Cyril
Kocko was assaulted by skinheads in 2014, attended the police station to report
the assault, and followed up with the police but was advised that the
investigation have been closed. The Applicants argue that the RAD erred in its
application of the law surrounding state protection to the evidence of this
incident.
[21]
In particular, the Applicants take issue with
the RAD’s statement that, in democratic countries such as the Slovak Republic, an
applicant for refugee status must do more than merely show that he went to see
members of the police force and that those efforts were unsuccessful. However,
the Applicants acknowledge that the RAD was correct in subsequently stating
that local failures by authorities to provide protection do not mean that the
state as a whole fails to protect its citizens, unless the failures form part
of a broader pattern of the state’s inability or refusal to provide protection.
[22]
The Respondent disagrees with the Applicants’
position that the RAD misstated or misapplied the law surrounding state
protection. The Respondent refers to the decision in Canada (Minister of
Citizenship and Immigration) v Flores Carrillo, 2008 FCA 94, in which the
Federal Court of Appeal restored an RPD decision which noted that the more
democratic a state’s institutions, the more a claimant must have done to
exhaust all courses of action open to him (paras 32-34). The RPD in that case
concluded that the claimant had not made additional efforts to seek protection
from the authorities when the local police officers allegedly did not provide
the protection she was seeking. The Federal Court of Appeal found that it was
not unreasonable for the RPD to have concluded that the claimant failed to
establish that state protection was inadequate.
[23]
The Respondent agrees with the Applicant’s
position only to the extent that it is correct to say that there is a range
within which states can be considered democratic, and whether a claimant can
successfully rebut the presumption of state protection is a function of both
the objective documentary evidence, which describes the functioning of the
particular state’s democratic institutions and the availability of protection
therein, and the evidence of the claimant’s particular experiences and efforts
to seek protection.
[24]
I find no reviewable error in the RAD’s statement
of the law surrounding state protection. Rather, the question for the Court’s
consideration is whether the RAD’s conclusion, that the Applicants 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
Applicants’ own evidence.
[25]
The RAD acknowledged that there was information
in both the country condition documentation and the arguments submitted by the
Applicants to indicate that there is widespread reporting of incidents of
intolerance, discrimination and persecution of Romani individuals in the Slovak
Republic. However, the RAD also noted that being a member of the Roma community
does not automatically confer refugee status based on the documentary evidence
of the general profile for the Roma. Rather, the question was whether the
Applicants in this particular appeal to the RAD had rebutted the presumption of
state protection. In addressing this question, the RAD reviewed its various
adverse credibility findings and, with respect to the 2014 assault upon Cyril
Kocko, noted that he was unable to identify the assailants, providing the
police with only a general description. The RAD concluded that, if the police
did close the investigation of the 2014 incident, it was due to Mr. Kocko’s
inability to provide a proper description of the assailants and that there was
no evidence that he was denied protection with respect to this incident because
of his Roma ethnicity.
[26]
I find no reviewable error by the RAD in this
component of its decision. The Applicants referred to the transcript of Mr.
Kocko’s testimony, in which he stated that he provided the police officers with
the basics of what his assailants looked like, that they had shaved hair, black
clothing and heavy boots. The Applicants argue that this was enough information
for the police to conclude that this was an attack by members of the far right
element in the Slovak Republic and to investigate further. They rely on the
decision in Pinter v Canada (Minister of Citizenship and Immigration),
2012 FC 1119 [Pinter], in which the Court allowed an application for
judicial review of an RPD decision rejecting claims for protection made by a
Roma family from Hungary. The Applicants refer in particular to Justice Zinn’s
comment at paragraph 14 of this case that accepting a report of criminal
conduct does not establish adequate police protection where no steps are taken
to investigate the complaint.
[27]
I do not find this case to assist the
Applicants. The error identified by Justice Zinn was in the RPD’s analysis of
the response of the police to the claimants’ reports of assaults against them.
One of the claimants testified that, although the police took their reports,
they did not investigate the complaints, and the RPD stated that it did not
accept the claimants’ allegation that the police did not even try to
investigate. Justice Zinn noted that the RPD provided absolutely no explanation
as to why this evidence had been rejected as there was nothing in the record to
indicate there had been any police investigation.
[28]
The case at hand does not involve an unsupported
conclusion by the RAD that the police investigated the complaint made by Cyril
Kocko. Rather, the RAD’s conclusion was that the police closed the
investigation because Mr. Kocko did not provide the police with a sufficient
description of the assailants. Given the limited information about the
assailants referred to in Mr. Kocko’s testimony, I cannot conclude this finding
is unreasonable.
[29]
The Applicants also fault the RAD for failing to
refer to the recent decision by this Court in Stojkova v Canada (Minister of
Citizenship and Immigration), 2017 FC 77 [Stojkova], in which
Justice Shore referred to documentary evidence of Roma suffering discrimination
and violence in Slovakia as well as police mistreatment of Roma suspects and
detainees. The Applicants argue that the RAD should have explained why the
availability of state protection for Roma in the Slovak Republic in this case was
different than as found in Stojkova.
[30]
With respect, I find that this argument does not
raise a reviewable error on the part of the RAD. The Applicants did not refer
the RAD to Stojkova. Moreover, Stojkova is a decision based on
the particular evidence that was before the pre-removal risk assessment officer
and the Court in that case. As pointed out by the Respondent, Justice Shore’s
analysis at paragraphs 21 and 22 of his decision refers to the claimants’
personal evidence of persecution being linked to the country condition evidence
and notes that each case must be considered on its own merits based on the
personal and country condition documents.
[31]
This leads to the Applicants’ final argument,
that the RAD’s conclusions with respect to the RPD’s treatment of the
documentary evidence are not transparent. The RAD concluded that the RPD
carried out a fair and independent analysis of the state protection documents
and conducted a proper analysis of the documentary evidence, and the RAD agreed
with the RPD’s conclusion that the Applicants had failed to rebut the
presumption of state protection. However, the Applicants argue that the RAD’s
reasons do not disclose an analysis as to how it arrived at these conclusions.
They submit that the RAD failed to conduct an independent assessment as required
by the correctness standard of review prescribed by the Federal Court of Appeal
in Canada (Minister of Citizenship and Immigration) v Huruglica, 2016
FCA 93.
[32]
My conclusion is that the RAD’s reasons do not
demonstrate an error in its application of the standard of review. If the RAD
showed deference to the RPD’s analysis, this would reflect an improper
application of the standard of reasonableness. However, this was not the nature
of its analysis. Rather the RAD expressed agreement with the RPD’s conclusion
that the Applicants had not rebutted the presumption of state protection, which
I consider to represent an application of the correctness standard of review.
[33]
I acknowledge the Applicants’ point that the
RAD’s reasons do not set out an extensive analysis of the state protection
documents or the alleged errors in the RPD’s state protection analysis set out
in the Applicant’s appeal submissions. However, 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, and in particular its
review of the Applicants’ personal evidence, the adverse credibility findings,
and the limited information provided by Cyril Kocko with respect to the
assailants in the 2014 assault. I read the decision as concluding that the very
limited personal evidence found credible by the RAD, in combination with the
country condition evidence, was not sufficient to rebut the state protection
presumption. I find the analysis to be transparent and within the range of
possible, acceptable outcomes by which the reasonableness standard is defined.
V.
Conclusion
[34]
In conclusion, applying the reasonableness
standard of review, I find that the Applicants have demonstrated no reviewable
error by the RAD in its analyses of their credibility or the availability of
state protection.
[35]
The parties raised no question for
certification for appeal, and none is stated.
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