Date: 20061004
Docket: IMM-7570-05
Citation: 2006
FC 1182
Toronto, Ontario,
October 4, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ZENON
BRZEZINSKA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AND
BETWEEN:
Docket: IMM-7572-05
BARBARA
BRZEZINSKA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDERS AND ORDERS
[1]
The
Applicants in the present Applications are partners who, on their Pre Removal
Risk Assessments (PRRA), presented the same evidence of fear of persecution
(s.96 of IRPA) and risk (s.97) as Roma should they return to Poland. The PRRA Officer who
rendered the decision on each Application gave the same reasons for rejection.
As a result, the reasons which follow are applicable to both Applications and all
references are to the Application Record and Tribunal Record on IMM-7570-05.
[2]
In the
decisions under review, the PRRA Officer cited, at length, the decision of the
Refugee Protection Division (RPD) with respect to each Applicant in which their
application for protection was rejected. In its decision, the RPD made a negative
credibility finding with respect to the Applicants’ evidence of personalized
persecution in Poland as Roma, and, therefore, the
evidence of individualized persecution was not considered on the issue of
prospective risk. Indeed, in the result, it is important to note that the RPD
did not conduct an independent analysis of prospective s.96 or s.97 risk to the
Applicants in Poland purely because of their Roma
ethnicity. This very well might be a reviewable error, but as I understand it,
it was not advanced in any subsequent proceeding.
[3]
In making
their PRRA Applications, the Applicants submitted cogent evidence of a fear of
persecution and risk of violence on the basis of their ethnicity should they
return to Poland. The PRRA Officer accepted this evidence as “new evidence”
even though it predated the RPD hearing and no specific finding allowing for
its admission on the record as made under s.113 of the IRPA. Nevertheless,
the evidence submitted was admitted to the evidentiary record on the PRRA Applications
upon which the decisions under review were rendered.
[4]
Excerpts
from the evidence submitted read as follows:
The report details ERRC [European
Roma Rights Centre] concerns in Poland, including:
Racially motivated violence:
Roma in Poland have been frequent targets of skinhead attacks, racially
motivated violence and harassment by non-Romani persons. Reporting such
violence and harassment to the authorities frequently led to further attacks
and threats against the Romani victims. As a result, many Roma live in a
climate of fear that pervades all aspects of their lives, from their
interaction with authorities to their ability to access public spaces and
services and to participate fully in the lives of the communities in which they
live.
Failure to protect Roma and
denial of justice for Romani victims of racially motivated crimes: The Polish
police and judiciary have been slow to react to reports of crimes against Roma
and to acknowledge the racial motivation of such crimes. When investigations
into racially motivated crimes were launched, they were frequently stalled or
discontinued altogether, often with the justification that the authorities did
not find sufficient evidence to issue arrest warrants, indictments or judicial
sentences – even in cases in which the alleged perpetrators had been identified
by victims and/or witnesses.
Police abuse: Police and other
authorities have frequently abused members of the Romani communities by
engaging in outright violence, unlawful arrests, searches, seizure of property,
harassment or biased investigation. When reporting racially motivated crimes
to the police, victims sometimes find themselves charged with crimes they did
not commit.
(Applicant’s Record, pp.46-47 )
[…]
The [“Never Again”] Association
claims that the government “does not offer the Roma adequate protection against
racist violence. Openly racist groups operate freely despite the provisions
of the Constitution and the penal code,” and suggests that the most “violent,
fascist groups registered as political parties are: “Boleslaw Tejkowski’s
Polish National Community-Polish National Party (PWN-PSN), Janusz Bryczkowski’s
Polish National Front (PFN) and Adam Gmurczk’s National Polish Revival (NOP)
(16 Nov. 1999).
[…]
Stankiewicz stated that in the
case of assault, roma are unlikely to turn to the court system or approach
prosecutors or police because they feel that such approaches will be useless,
noting that examples such as that in Ochotnica (see above), discourage Roma
from trusting the authorities (13 Jan. 2000). He is of the opinion that
officials are as susceptible to stereotypes about Roma as the population in
general and that Roma victims who go through these channels are often made to
feel as if they are the guilty party (ibid.).
Kwiatkowski stated that in his
view, in most cases of attacks against Roma, the policy would simply try to
brush aside the incident and not initiate an investigation as it would be too
labour-intensive and too costly (18 Jan. 2000). He believes that the police do
not trust Roma witnesses and that ethnic Poles would by highly unlikely to come
forward as witnesses against ethnic Poles who attack a Roma (ibid.). For these
reasons, there are very few cases that make it past the initial investigation
stage (ibid.). Andrasz also believes that police are not very active in such
cases and that investigations tend to become stalled, preventing court cases
from being pursued (19 Jan. 2000). In the last two years, Kwiatkowski could
think of only one incident in particular – the 1998 arson attach in Bytom –
that was pursued all the way through the court systems, although he thought
there might have been perhaps one other (18 Jan. 2000).
(Application Record, pp.87-88)
[5]
In each
PRRA Application, the Applicants argued that they face a prospective risk in Poland of murder, racially motivated
violence directed specifically against the Roma minority, frequent attacks by
skinheads, and repeated harassments and physical assaults (Application Record,
p.31). In each decision under consideration, the PRRA Officer acknowledges the
evidence and argument submitted by the Applicants (Tribunal Record, p. 3).
[6]
As a
result, the PRRA process engaged by the Applicants called upon the PRRA Officer
to fairly deal with the evidence and argument presented; that is, to make
specific determinations as to whether, simply because of their Romany
ethnicity, the Applicants would suffer more than a mere possibility of persecution
and, on a balance of probabilities, risk to life or cruel and unusual treatment
or punishment, should they return to Poland. In my opinion, the PRRA Officer
failed to meet this obligation.
[7]
The
decisions rendered do not address the evidence and arguments presented by the
Applicants. After repeating the findings of the RPD, the PRRA Officer engages in
a description of the democratic nature of Poland, and the due diligence efforts being
made within the country to deal with widespread discrimination against Roma,
including laws prohibiting violence. However, the PRRA Officer does not engage
in an analysis of the reality of the effectiveness of the due diligence efforts
on the issue of risk advanced by the Applicants for determination.
[8]
The PRRA
Officer did correctly find that, as Poland
is a democratic state, the presumption of state protection required the
Applicants to present clear and convincing evidence in rebuttal. However, in
my opinion, the evidence presented by the Applicants as rebuttal required the PRRA
Officer to make a determination as to whether the presumption had indeed been
rebutted, and if not, why not. This requirement was not met. Indeed, on state
protection this is the only analysis provided:
There is insufficient objective evidence
to indicate that the Polish government condones discrimination against the
Roma. The evidence indicates that the government is taking action to improve
the position of the Roma within the Polish society.
The applicant has not discharged his
obligation that state protection would not be available to him upon return to Poland.
No government that makes any claims to
democratic values or protection of human right can guarantee the protection of
all of its citizens at all times (M.E.I. v. Villafranca, (F.C.A.)(1992)
p.3 (quicklaw)).
He has not provided clear and convincing
evidence of the state’s inability to provide protection.
Counsel referred to documentation, which
indicates that Romas experience difficulties living in Poland. However, there is also documentary
evidence, which indicates that steps have been taken by the Polish government
to address minority issues.
Upon review of all the evidence before
me, with respect to Section 96 of the Immigration and Refugee Protection Act, I
am not persuaded to arrive at a different conclusion of the RPD. The applicant
and counsel have not addressed satisfactorily the issues that the RPD had.
(Tribunal Record, pp.10-11)
[9]
As noted,
a factor in the reasons provided is the determination of the RPD. About the
RPD’s decision, early in the decisions rendered, the PRAA Officer comments as
follows:
The risk that the applicant/counsel
identified had been dealt with at the refugee hearing.
With respect to Section 96 of the Immigration
and Refugee Protection Act, the applicant had an opportunity to submit new
evidence that would persuade me to arrive at a different conclusion of the RPD.
(Tribunal Record, p.6)
[10]
To recap, the
RPD’s decision is devoid of any prospective s.96 or s.97 determination because
the Applicants evidence of their own experiences with ethnic based violence was
not believed. By making the comment just quoted, it appears that the PRAA
Officer misconceived the nature of the Applicants’ PRAA
Applications, and this misconception played into the decisions rendered. The
Applicants’ PRAA evidence and argument is based purely on their prospective
risk as Roma, without reference to their past experience as Roma. It appears
that this is a point that the PRRA Officer did not understand. In the result,
it is clear that the obligation to deal with the evidence and argument was not
met.
[11]
I find
that the void found in the PRAA Officer’s decisions can be fairly characterized
as a denial of natural justice; the Applicants were entitled to a reasoned
decision on state protection on the evidence which they advanced, and which
they did not receive. As a result, I find that the decisions were rendered in
reviewable error.
ORDER
IMM-7570-05
Accordingly, for the reasons
provided, the PRRA decision under review is set aside and the matter is
referred back to a differently constituted panel for redetermination.
“Douglas R. Campbell”
ORDER
IMM-7572-05
Accordingly, for the reasons
provided, the PRRA decision under review is set aside and the matter is
referred back to a differently constituted panel for redetermination.
“Douglas R. Campbell”
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