Date: 20101213
Docket: IMM-1798-10
Citation: 2010 FC 1281
Toronto, Ontario, December 13, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
IVANA CERVENAKOVA
SARKA CERVENAKOVA,
ANDREA CERVENAKOVA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicants are citizens of the Czech Republic and of Roma ethnicity.
They seek to set aside a decision of the Refugee Protection Division of the
Immigration and Refugee Board in which their claims for refugee protection were
rejected.
[2]
The
grounds upon which they seek to set aside the Board’s decision are as follows:
i.
Comments
made by the Minister of Citizenship, Immigration and Multiculturalism during
the period April 2009 to August 2009 give rise to a reasonable apprehension
that the Board was biased against their claims for protection;
ii.
the
Board erred by failing to conduct an appropriate analysis under section 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA);
iii.
the
Board erred by misapprehending or ignoring evidence and by unreasonably
assessing the evidence as a whole; and
iv.
the
Board erred by failing to consider whether the various incidents of
discrimination that they or similarly situated persons experienced cumulatively
amounted to persecution.
[3]
For
the reasons that follow, this application is dismissed.
I. Background
[4]
The
principal Applicant and her daughters, Andrea and Sarka, came to Canada on December
1, 2007 and applied for refugee protection approximately two weeks later.
[5]
She
claims that she and her daughters were persecuted in the Czech Republic because
of their Roma ethnicity. She states that as a child, she was taunted by other
children and by her teachers, was put in a lower grade school and was tied to a
tree on one occasion. After she had children and needed to take them to a doctor,
she was required to wait in the hallway instead of in the waiting room. Her
oldest daughter, Andrea, was sent to a lower grade school and she was forced to
leave her secondary school because of racially motivated abuse.
[6]
The
principal Applicant further claims that when her youngest daughter, Sarka, was
two years old, she contracted a form of meningitis. When she took her to the
doctor, the doctor provided negligent treatment. As a result, Sarka is now
deaf. The principal Applicant states that she wanted to take legal action
against the doctor, but no one wanted anything to do with suing her.
[7]
The
principal Applicant also claims that, at a school for the hearing impaired, Sarka
was beaten by her teacher on at least two occasions. She states that she reported
the incidents to the principal, but nothing was done to resolve the situation.
[8]
The
principal Applicant also claims that she had a racist neighbour who constantly
kicked her door, threatened her, and beat and spat at her daughters. In
addition, she alleges that her building superintendent exposed himself to
Andrea.
[9]
She
claims that they moved to a larger city to escape their persecution, but they
continued to face the same problems. She also alleges that people often threw
eggs, meat, bones or water balloons at her and her Roma neighbours.
II. The
decision under review
[10]
After
summarizing the Applicants’ claims and accepting their identities, the Board
addressed the principal Applicant’s credibility. It began by noting that “it
was apparent throughout the hearing that there were a number of serious
discrepancies in the claimant’s evidence when the oral testimony was compared
to the Personal Information Form (PIF) and the other documents available.” The Board
then provided some examples.
[11]
The
Board noted that, in the principal Applicant’s oral testimony, she stated that
her former spouse, who is also of Roma ethnicity, was attacked and injured in
her presence in the subway by racists in 1997. However, this incident, which
was one of the main reasons why she and her former spouse sought asylum in the United Kingdom, was not mentioned in
her PIF.
[12]
The
Board then observed that, in her PIF and oral testimony, the principal Applicant
identified the doctor who initially treated Sarka for meningitis as being a
woman whose son was a skinhead. However, at the time she made her claim for
refugee protection, she identified the doctor as a man whose brother was a
skinhead. The principal Applicant’s explanation for the discrepancy was simply
that she had intended to state that the doctor was a woman.
[13]
The
Board also noted that, in her oral testimony, the principal Applicant stated that when
she learned that Sarka had been beaten by her teacher she informed the school
principal and then reported the matter to the police, who did nothing because
there were no witnesses. However, in her PIF, she made no mention of having
reported the matter to the police. The Board was not satisfied with her
explanation that “she had forgotten a lot when she filled out the PIF,”
particularly given that she made amendments to other parts of her PIF.
[14]
In
addition to the foregoing, the Board observed that, in her oral testimony, the
principal Applicant spoke about a racist neighbour who constantly kicked her
door, made racist threats, beat her children and did other bad things. The
Board noted that she claimed that the police did not respond to her telephone
calls, except on one occasion when they ended up talking and laughing with the racist
neighbour, and then did nothing. However, once again, this was not mentioned in
her PIF.
[15]
The
Board further noted that the principal Applicant stated that her ex-spouse was
delinquent in paying child support. When she contacted the police about this,
they allegedly refused to get involved. However, as with the other matters
mentioned above, this entire matter was not discussed in her PIF.
[16]
Based
on the foregoing, the Board found the principal Applicant to be generally
lacking in credibility. It stated that it did not believe, on a balance of
probabilities, that any of the significant events that she alleged happened to
her and her children, actually happened.
[17]
Notwithstanding
this finding, the Board proceeded to assess whether the Applicants had rebutted
the presumption of state protection. After reviewing the evidence, it concluded
that they had failed to rebut this presumption. It therefore dismissed their
claims under section 96 of the IRPA. After noting that there was no other
evidence that the Applicants would be at risk of the harms delineated under
section 97, it dismissed those claims as well.
III. Preliminary
issue
[18]
At
the outset of the oral hearing before me in this proceeding, counsel for the
Applicants referenced Halsbury’s Laws of Canada – Civil Procedure and stated
that courtesy required him to provide me with the opportunity to recuse myself
from this matter, before having heard the parties’ oral arguments.
[19]
In
short, he submitted that the Applicants perceive that I have a pre-disposition
to deny their application because: (i) I denied the application for judicial
review in Dunova v. Canada (Minister of Citizenship and Immigration),
2010 FC 438; and (ii) I denied, last month, the application for leave and
judicial review in Cervanak v. Canada (Minister of Citizenship and
Immigration), IMM-4574-10. Both of those cases involved allegations of bias
that are similar to the allegations being made in this proceeding.
[20]
Counsel
for the Applicants expressed a particular concern about my denial of the
application for leave to commence an application for judicial review in Cervanak,
above. He stated that 51 of the 54 paragraphs in the written Memorandum of
Argument that he submitted on behalf of the Applicants in this proceeding are
virtually identical to corresponding paragraphs in the Memorandum of Argument
that he prepared on behalf of the Applicants in Cervanak, above. He
asserted that because I concluded that his arguments in Cervanak had not
even met the test for granting leave, he did not believe that he had “a chance
to win” in this proceeding. He added the issue that has been raised in respect
of the Board’s bias in this case is the Applicants’ “best issue.”
[21]
There
is a big difference between being biased and exercising, even consistently,
one’s judicial responsibilities based on one’s interpretation of the law.
[22]
The
classic expression of the test for bias was articulated by Justice de Grandpré
in Committee for Justice and Liberty v. Canada (National Energy
Board), [1978] 1 S.C.R. 369 at 394, when he observed that “the apprehension
of bias must be a reasonable one held by reasonable and right minded persons,
applying themselves to the question and obtaining thereon the required information.”
He added that the “test is ‘what would an informed person, viewing the matter
realistically and practically – and having thought the matter through –
conclude…’”
[23]
In
Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 76, the
Supreme Court confirmed the high test to be met when alleging bias, when it
observed that “the standard refers to an apprehension of bias that rests on
serious grounds, in light of the strong presumption of judicial impartiality.”
The Court proceeded to approvingly quote Justice de Grandpré’s observation, in Committee
for Justice and Liberty, above, at 394, that “[t]he grounds
for this apprehension must, however, be substantial, and I … refus[e] to accept
the suggestion that the test be related to the ‘very sensitive or scrupulous
conscience’.”
[24]
In
Geza v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, at paras. 52 and 53, it was held that the approach
described above applies to the determination of refugee claims by the Board,
given the Board’s independence, its adjudicative procedure and functions, and
the fact that its decisions affect the rights of claimants under the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[25]
As
counsel to the Applicants conceded, the allegations of bias that were made in Dunova
were based on facts and evidence that differ in a number of important respects
from the facts and evidence that have been presented in the case at bar. Dunova
also involved different counsel and a different type of decision-maker, namely,
a pre-removal risk assessment officer, rather than the Board. In these
circumstances, I do not believe that an informed person, viewing the matter
realistically and practically, and having thought the matter through, would
conclude that I would be predisposed to reaching the same conclusion in the
case at bar as I reached in Dunova, let alone that I may be biased,
simply because I rejected the allegation of bias that was raised in Dunova
and that has been raised again in the case at bar.
[26]
Turning
to Cervanak, above, the similarities between, on the one hand, the facts
and allegations in that case and, on the other hand, those that have been made
the case at bar are greater than they were between Dunova and the case
at bar. Nevertheless, once again, I have concluded that an informed person, viewing the matter realistically and
practically, and having thought the matter through, would not conclude, upon
learning how I dealt with the applications in Cervanak and Dunova,
that I am biased against the Applicants in the case at bar.
[27]
I
acknowledge that a reasonable and informed person might conclude that it is
more likely than not that an adjudicator who is faced with a case that is highly
similar to a case recently considered by that same adjudicator would approach
the issues in the two cases in a similar fashion. In the absence of any facts,
evidence or new arguments that might provide a basis for distinguishing two
cases, such a person might also reasonably believe that it is more likely than
not that the adjudicator would make determinations in the second case that are
similar to those made in the first case. However, believing that it is more
likely than not that an adjudicator will approach similar issues in a consistent
manner is a far cry from apprehending, on substantial grounds, that the
adjudicator is or may be biased.
[28]
It
would be entirely reasonable for the public to expect that an adjudicator would
be consistent in his or her approach to, and disposition of, cases involving
highly similar facts, evidence and arguments. Indeed, the principle of judicial
comity encourages consistency as between judges in such circumstances. That
principle is “that a substantially similar decision rendered by a judge of this
Court should be followed in the interest of advancing certainty in the law” (Almrei
v. Canada (Minister of Citizenship and Immigration and the Minister of Public
Safety and Emergency Preparedness), 2007 FC 1025, at para. 61). This
principle is relevant in this case not just because of my prior decisions in Dunova,
above, and Cervanak, above, but also because of Justice Zinn’s more
recent decision in Gabor v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1162, where he rejected a very
similar allegation of bias.
[29]
That
said, there are exceptions to the principle of judicial comity, which recognize
that it may well be appropriate not to follow a prior case where the case
involved: (i) different facts, evidence or issues; (ii) a failure to consider
relevant legislation or authorities in the prior case; or (iii) the prospect of
creating an injustice if the prior decision were followed (Almrei,
above, at para. 62). Determining whether there is a factual, evidentiary or legal
basis for reaching a conclusion in this case which is different from the
conclusions I reached on the question of bias that was raised in Dunova,
above, and in Cervanak, above, and that Justice Zinn reached in Gabor,
above, will be the focus of my assessment below.
[30]
The
cases relied upon by the Applicants are all distinguishable. In short, Mitsui
& Co. (Point Aconi) Ltd. v. Jones Power Co., 2001 NSCA 112 and R. v.
Bertram, [1989] O.J. No. 2123 (S. Ct.) involved prior inappropriate comments
made by a trial judge in respect of the same case that was before him. Those
comments suggested that the judge had prematurely made up his mind on a serious
issue. R. v. Yalahow, [1998] N.W.T.J. No. 67 (S. Ct.) involved an
attack on a warrant before the same judge who issued the warrant. Children’s
Aid Society of Halifax v. M.B., [1988] N.S.J. No. 539 (Fam. Ct.) concerned
a child protection hearing involving the second child of a father in respect of
whom the judge had previously made very broad and adverse credibility findings
in proceedings involving the father’s first child. In R. v. Bird, [1997]
O.J. No. 2074 (Gen. Div.), Justice McIsaac decided to take “the high road” and
withdraw as the trial judge, after having dismissed the application for
judicial disqualification. However, that case involved statements made by that
judge which were alleged to have implied certain adverse findings with respect
to the accused’s character and the preliminary evidence.
[31]
The
Applicants also relied upon two other cases in which an allegation of bias
against a judge was dismissed. In Arsenault-Cameron v. Prince Edward Island,
[1999] 3 S.C.R. 851, at para. 5, Justice Bastarache observed that “partiality
is ‘a state of mind or attitude . . . in relation to the issues and the parties
in a particular case’, a real disposition to a particular result. The
applicant would have to show wrongful or inappropriate declarations showing a
state of mind that sways judgment in order to succeed” (emphasis added). He
proceeded to find that there was no evidence adduced to demonstrate that his
beliefs or opinions expressed when he was counsel, a law professor or otherwise
would prevent him from coming to a decision in the case before him, on the
basis of the evidence. In my view, those comments and findings are applicable
to the case at bar, particularly given that the only basis upon which the
Applicants base their apprehension of bias is that I did not accept similar
arguments made in other cases.
[32]
This
brings me to the final case relied upon by the Applicants in respect of this
issue. In Ahani v. Canada (Minister of
Citizenship and Immigration) (2000), 7 Imm. L.R. (3d) 1, at para. 7
(F.C.A.), the Court quoted approvingly the following passage from Arthur v. Canada, [1993] 1 F.C. 94 at
105:
The most accurate statement of the law would
thus appear to be that the mere fact of a second hearing before the same
adjudicator, without more, does not give rise to a reasonable apprehension of
bias, but that the presence of other factors indicating a predisposition by the
adjudicator as to the issue to be decided on the second hearing may do so.
[33]
The
Applicants suggest that in this case, there are such “other factors.” I
disagree. The mere fact that I made adverse determinations in respect of a
similar issue, in two different prior cases, based on the facts, the evidence
adduced and the arguments made in those cases, is not a sufficient basis upon
which to conclude that such “other factors” exist. To reiterate, the mere fact
that I rejected similar arguments in two previous cases involving different applicants
is not a sufficient basis upon which to conclude that an informed person,
viewing the matter realistically and practically, and having thought the matter
through, would apprehend that I am biased in relation to the issue that the
Applicants in this case have raised in respect of bias by the Board.
[34]
To
establish the existence of “substantial grounds” for a reasonable apprehension
of bias, one must go further and demonstrate that a judge “has been influenced
by some extraneous or improper consideration,” (Geza, above, at para.
57), has made “inappropriate declarations showing a state of mind that sways
judgment in order to succeed” (Arsenault-Cameron, above), or has
prejudged one or more important issues.
IV. Standard
of review
[35]
The issue that the
Applicants have raised with respect to whether the Board’s decision was made in
breach of the duty of fairness, including the requirement of impartiality, is
reviewable on a standard of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 55
and 90; Canada (Minister
of Citizenship and Immigration) v. Khosa, 2009 SCC
12, [2009] 1 S.C.R. 339, at para. 42; Geza, above, at para. 44).
[36]
The remaining issues that the Applicants have
raised are reviewable on a standard of reasonableness (Dunsmuir, above,
at paras. 51 to 55; Khosa, above, at para. 45; Velez v. Canada (Minister of Citizenship and Immigration), 2010 FC 923, at para. 23).
[37]
In Khosa, at para. 59, reasonableness was articulated by Justice Ian Binnie as
follows:
Where the reasonableness standard applies, it
requires deference. Reviewing courts cannot substitute their own appreciation
of the appropriate solution, but must rather determine if the outcome falls
within "a range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir, at para. 47). There might
be more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
V. Analysis
A. Did comments made by the Minister give
rise to a reasonable apprehension of bias?
[38]
The
Applicants submit that they have a reasonable apprehension that the Board is
biased against claimants for refugee protection who are from the Czech Republic and
of Roma ethnicity. They base this claim on:
i.
comments
reportedly made, and actions taken, by the Minister of Citizenship, Immigration
and Multiculturalism;
ii.
their
view that the Board has a recent history of bias against Roma and a history of
attenuated independence;
iii.
the
fact that the number of successful claims for refugee protection by persons
from the Czech Republic allegedly declined from over 90% to zero after the
Minister made the comments in question; and
iv.
the
alleged corruption of Board members.
[39]
The
Respondent submitted that the Applicants were required to raise their
allegations of bias at the earliest opportunity (Geza, above, at para.
66). The Respondent noted that since the comments of the Minister that provided
the foundation of the Applicants’ claims of bias were reported between April
2009 and August 2009, the Applicants should have raised their concerns
regarding bias at the time of the Board’s hearing in this matter, which took
place on January 5, 2010. In the absence of any evidence that the Applicants
were aware of the comments in question, I am not satisfied that the Applicants
were in a position to have raised their allegations of bias at the time of
their hearing before the Board.
(1) Comments reportedly made, and
actions taken, by the Minister
[40]
The
Applicants submit that over a dozen comments reported to have been made by the
Minister between April and August 2009, together with his announcement of a
visa restriction on foreign nationals from the Czech Republic in
mid-July 2009, demonstrate that he had a strategy of reducing the level of
acceptance of refugee claims by Roma from the Czech Republic. The
Applicants assert that this alleged strategy is similar to the strategy that
was found to exist in Geza, above. They add that this strategy distinguishes
the case at bar from Dunova, above, where I found that the two reported
comments by the Minister that formed the basis of the bias allegation in that
case “appear to have been spontaneous and not made pursuant to or in relation
to any strategy” (Dunova, above, at para. 58).
[41]
In
Geza, above, the key factor that led the Federal Court of Appeal to
accept the appellants’ claims on the issue of bias was that Mr. Bubrin, one of
the two members of the Board panel in that case, had played a leading role in
the development of the Board’s “lead case strategy.” After noting that the participation
of Mr. Bubrin in the panel was “particularly unfortunate,” and that this
“provided a link between the adjudication of the appellants’ claims, and the
activities on the part of the Board’s management,” the Court concluded:
To summarize, given the high standard of impartiality to which the
Board is held in its adjudicative capacity, a reasonable person might well have
concluded on the basis of the above that the panel hearing the appellants’
claims was not impartial. This is because one of its two panel members may have
been predisposed towards denying the appellants’ claims since he had played a
leading role in an exercise that may seem to have been partly motivated by a
desire by CIC and the Board to produce an authoritative, if non-binding legal
and factual “precedent”, particularly on the adequacy of state protection,
which would be used to reduce the percentage of positive decisions in claims
for refugee status by Hungarian Roma. The panel may reasonably be seen to have
been insufficiently independent from Board management and thus tainted by the
Board’s motivation for the leading case strategy. Support for a belief that the
lead case strategy was motivated by a desire to deter potential claimants is
the apparent leak to the Hungarian media of the negative decisions before they
were released, and the ensuing publicity calculated to deter Roma from leaving
for Canada in order to claim refugee
status. (Geza, above, at paras. 59, 64 and
65).
[42]
In
addition to the involvement of Mr. Bubrin in the panel, there were two other
significant elements of the factual matrix which led the Court in Geza
to accept the appellants’ claims of bias. The first was the fact that the lead
case strategy was developed by the Board’s senior management to, at least in
part, reduce the number of positive decisions that might otherwise be rendered
in favour of the approximately 15,000 Hungarian Roma claimants expected to
arrive in Canada in 1998 (Geza, above, at paras. 61, 62 and 65). The
second was the absence of any involvement of the immigration and refugee bar or
interested non-governmental organizations in the development of the planning process
for this initiative (Geza, above, at paras. 59 and 63).
[43]
This
factual matrix is very different from the one in the case at bar. In short,
there is no evidence whatsoever of: (i) any strategy by the Board to
reduce the number of positive decisions that might otherwise be made in favour
of refugee claimants from the Czech Republic who are of Roma ethnicity; or (ii)
any involvement by the Board member who rendered the decision under review in
the case at bar in any such strategy or in other initiative targeted at such
refugee claimants. Thus, even if the Applicants were able to demonstrate that
the Minister had such a strategy, they have not established the critical “link”
to either the Board as a whole or the Board member who adjudicated their
claims. This is further discussed below.
[44]
In
the oral hearing before me, counsel to the Applicants conceded that it is
entirely appropriate for the Minister to concern himself with, and to comment
upon, policy issues that may arise from trends or significant fluctuations in
immigration from particular regions of the world. However, he maintained that
the comments made by the Minister in this case were specifically directed
towards influencing the Board in respect of its approach to refugee claims by
persons from the Czech Republic.
[45]
I
disagree. The evidence adduced by the Applicants does not demonstrate the
existence of “serious grounds” to support this allegation.
[46]
The
reported statements of the Minister upon which the Applicants rely to support
their claims are as follows:
i.
In
connection with the reported “diplomatic row between the Czech Republic and Canada,”
the Minister was reported to have stated: “We are obviously concerned about the
number of false refugee claimants” (“Canada rethinks Czech visa law
– Minister blames fraud for influx of Roma asylum seekers,” Prague Post,
April 23, 2009).
ii.
In
connection with his reported view that the substantial increase in asylum
applications by claimants from the Czech Republic may be
attributable to “profiteers,” the Minister was quoted as saying: “If
indeed there are commercial operations, I would hope that the Czech authorities
are able to identify those and crack down on them” (Emphasis added. Prague Post, above). Elsewhere,
he was quoted as having encouraged the Czech government to “crack down on
unscrupulous operators believed to be behind a massive surge” in the number of
Roma refugee claimants (“Canada calls on Czech govt to stop Roma Refugees,”
Aktuálnĕ, April 16, 2009). Reports of essentially the same alleged
comments by the Minister were made in a number of other news articles submitted
by the Applicants.
iii.
In
connection with his reported threat to re-impose the visa requirements that
were lifted on visitors from the Czech Republic in late 2007, the Minister was
quoted as stating: “The increase in asylum claims from the Czech Republic –
hardly an island of persecution in Europe – is a real concern and Canada is
monitoring the situation closely” (Canwest News Service, July 2, 2009).
Essentially the same comment was reported to have been made in a number of
other news articles submitted by the Applicants.
iv.
In
connection with one of two issue papers that were released in June and July 2009,
respectively, after the Research Directorate of the Board sent a fact finding
mission to the Czech Republic, the Minister was quoted as stating: “The report,
as I’ve read it, says there are difficulties for Roma in the Czech Republic. We all know
that but the government is doing its best to improve the legal treatment of,
and economic opportunities for, members of that community” (“Czech Roma aren’t
discriminated against: Kenney,” Canwest News Service, undated). This
comment was also quoted in an article published by the Financial Post,
which added: “Kenny stressed on Thursday the decision-making process at the
IRB, an independent tribunal whose members are appointed by the federal
government, is based on the facts of each claim” (Emphasis added. “Czech
Roma aren’t discriminated against: Kenney,” Financial Post, June 24,
2009).
v.
Also
in connection with that issue paper, the Minister was quoted as stating: “If
someone comes in and says the police have been beating the crap out of them,
the IRB panellist can then go to their report and say, ‘Well, actually, there’s
been no evidence of police brutality.’” The Minister is reported to have added:
“The IRB does not accept or reject claims on the basis of the country of origin
or any general finding. They assess each claim on its merits, as it should
be” (Emphasis added. “Czech Roma aren’t discriminated against: Kenney,” Canwest
News Service, June 25, 2009).
vi.
In
connection with the imposition of new visa requirements for visitors from
Mexico and the Czech Republic, the Minister is reported to have stated: “We’re
not talking about the kinds of people that are living in UN refugee camps by
the millions, who are victims of war and state-sponsored persecution … It’s an
insult to the important concept of refugee protection to allow it [to] be
systematically violated by people who are overwhelmingly economic migrants … In
addition to creating significant delays, the sheer volume of these claims is
undermining our ability to help people fleeing real persecution” (“‘Don’t Fool
Us’ – Canada Tells Mexicans and Czechs,” Global Perspectives, August 14,
2009).
vii.
Also
in connection with the new visa requirements, the Minister was quoted as
stating: “This does underscore the need to reform our asylum system so that it
ensures that real victims of persecution get swift relief and protection in Canada, and that
economic migrants seeking to abuse our generosity are shown to the door
quickly.” The Minister reportedly added: “When we raise with our partners in
foreign countries the issue of false asylum claims, or large flows like we’ve
seen from Mexico and Czech Republic, they turn the discussion back on us, and
say, ‘Your system is inviting this kind of abuse. And you need to fix your
system.’” He apparently also observed: “It is not lost on economic migrants who
want to jump the queue that we have a system that’s fairly easy to abuse. And
where people can settle in Canada, sometimes for several years, with a mixture
of a work permit and/or social benefits, and if they’re determined to, they can
game our system and abuse our generosity” (“Minister calls for overhaul of Canada’s refugee
system,” The Globe and Mail, August 21, 2009). Reports of similar
comments by the Minister appeared in several other news articles submitted by
the Applicants;
viii.
In
a press release issued by Citizenship and Immigration on July 13, 2009, announcing
the imposition of the visa requirement on visitors from the Czech
Republic,
the Minister is quoted as having stated, among other things:
In addition to creating significant delays and
spiralling new costs in our refugee program, the sheer volume of these claims
is undermining our ability to help people fleeing real persecution.
...
All too often, people who really need Canada’s protection find themselves in a long line,
waiting for months and sometimes years to have their claims heard. This is
unacceptable.
...
The visa requirement that I am announcing will
give us a greater ability to manage the flow of people into Canada and verify bona fides. By taking this important
step towards reducing the burden on our refugee system, we will be better
equipped to process genuine refugee claims faster.
[47]
In my view, the above-quoted statements reported to have been made
by the Minister, together with the imposition of the visa requirement that was
announced by the Minister, would not, individually or collectively, provide
reasonable and right minded persons with serious or substantial grounds upon
which to apprehend: (i) that the Minister had intended to influence the manner
in which Board members conduct their assessment of individual refugee claims
from the Czech Republic; or (ii) that Board members would actually be
influenced by the Minister’s statements and his announcement of the visa
requirement. As reflected in the two comments that I have underlined from the
above-referenced articles dated June, 24 2009 and June 25, 2009, the Minister
appears to have been very careful to underscore that decisions are made by the
Board, which he noted is independent, on the basis of the facts in each case.
[48]
Having
underscored that decisions in individual cases are made by an independent
Board, on the facts of each case, it was open to the Minister to express his concerns
with respect to: (i) the dramatic surge in the number of refugee claimants from
the Czech Republic, immediately following the lifting of the previous visa
restriction in late 2007; and (ii) the impact that the surge was having on
other refugee claimants, on Canada’s ability to process their claims, and on
Canada’s refugee policy. It was also open to the Minister to express his
personal views with respect to the content of the two issue papers released by
the Board in June and July 2009.
[49]
In
this particular context, the Minister’s statements did not compromise the independence
of the Board, even though he may have been better advised to refrain from
publicly commenting upon the extent to which he believed some refugee claimants
from the Czech
Republic might not be
genuine refugees.
[50]
The
Minister was also entitled to comment upon his perception of the underlying
cause of the surge in the number of refugee claimants from the Czech Republic. As
reflected in his above-quoted comments, he appears to have had reason to
believe that “unscrupulous operators” in the Czech Republic were behind
the surge. The Applicants adduced no evidence to demonstrate that this belief
was unreasonable. It must therefore be assumed that it was reasonable. It was
entirely open to the Minister to share that belief with the public and to raise
it in diplomatic discussions with representatives of the Czech
Republic.
It was also entirely open to the Minister to seek to address the serious policy
issues that he had identified by announcing a visa restriction on visitors from
the Czech Republic.
[51]
In
passing, I should note that the Applicants’ claim that the Minister announced
the aforementioned visa restriction because the Board was not responding to his
attempts to reduce the rate of acceptance of refugee claims being made by
citizens from the Czech Republic is inconsistent with their claim that the
Board was biased.
(2) The Board’s alleged history of bias
and absence of independence
[52]
This
allegation by the Applicants is based on: (i) the Federal Court of Appeal’s
conclusions in Geza, discussed above, regarding the lead case strategy developed
by the Board in 1998 and 1999; (ii) claims made by former Board member Lloyd
Fournier that he was subjected to influence, in late 2003 and 2004, to reject the
applications of Hungarian Roma refugee claimants; and (iii) the Applicants’
assertion that Board members are dependent on the Minister to be appointed and
reappointed to the Board.
[53]
The
claims of Mr. Fournier, as reported in Walrus Magazine, constitute the only
evidence adduced by the Applicants in support of their allegation that the
Board’s bias towards Hungarian or Czech refugee claimants of Roma ethnicity
extended beyond the lead case strategy that was at issue in Geza.
However, the article in Walrus Magazine also noted that Mr. Fournier was
the subject of an internal investigation by the Board involving allegations of
inappropriate conduct, some of which he appears to have acknowledged. That
article proceeded to report that an independent investigator who was appointed
in connection with those allegations ultimately exonerated Mr. Fournier, but
also found that he “did on occasion display unwelcome and improper conduct in
the workplace.”
[54]
This
evidence that the Board has a historical bias against Czech and Hungarian
refugee claimants is tenuous, at best, particularly considering that: (i) Mr.
Fournier’s claims date back over six years; (ii) he was involved in a serious
dispute with the Board involving his own conduct; and (iii) no other evidence
of bias by the Board against Hungarian or Czech claimants has emerged in the
intervening period or been adduced by the Applicants.
[55]
As
to the Applicants’ claim that Board members are dependent on the Minister to be
appointed and reappointed to the Board, this is simply a bald assertion. Apart
from what has been discussed above, the Applicants have adduced no other
evidence of: (i) historical or current bias by the Board or any of its members
against Hungarian or Czech refugee claimants; or (ii) attenuated independence
on the part of the Board or any of its members.
[56]
Indeed,
one of the articles submitted by the Applicants contains a very favourable
implicit assessment of the Board from Mr. Abraham Abraham, who is identified as
the top representative in Canada of the United Nations High Commission for
Refugees. In that article, Mr. Abraham is quoted as having stated that
“Canada’s refugee determination system is perhaps the best in the world, due to
its objectivity and insulation from outside interference” (“UN Refugee Agency
Cries Foul on Mexican, Czech Visas,” Embassy Magazine, August 19, 2009).
[57]
In
the course of addressing the applicant’s allegations of bias in Zrig v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 1043, aff’d 2003
FCA 178, Justice Tremblay-Lamer discussed Justice Joyal’s decision in Van
Rassel v. Canada (Superintendant of the Royal Canadian Mounted Police),
[1987] 1 F.C. 473. In the latter case, the applicant alleged the existence of a
reasonable apprehension of bias on the basis that members of a disciplinary
tribunal had been appointed by the Commissioner of the RCMP, whom the applicant
suspected of having made negative statements about him. In dismissing the
claim, Justice Joyal observed (at 487):
The
Commissioner of the RCM Police is not the tribunal. It is true that he has
appointed the tribunal but once appointed, the tribunal is as independent and
as seemingly impartial as any tribunal dealing with a service-related offence.
One cannot reasonably conclude that the bias of the Commissioner, if bias there
is, is the bias of the tribunal and that as a result the applicant would not
get a fair trial.
[58]
The
foregoing statement applies equally, if not more strongly, to Board members,
who are appointed by the Governor in Council (IRPA, para. 153(1)(a)).
[59]
It
is also relevant to note that Board members are subject to a Code of Conduct,
which, among other things, provides:
5. The
standards of conduct set out in the Code are based on and recognize two
fundamental principles: (i) that public confidence and trust in the
integrity, objectivity and impartiality of the IRB must be conserved and enhanced; and (ii) that independence
in decision-making is required.
…
29. Members shall not be
influenced by extraneous or improper considerations in their decision-making.
Members shall make their decisions free from the improper influence of other
persons, institutions, interest groups or the political process. (Code of
Conduct for Members of the Immigration and Refugee Board of Canada, June 1, 2008.)
[60]
The
Board member in the case at bar must be presumed to be impartial, absent
serious grounds for concluding that a reasonable and informed person, viewing
the matter realistically and practically, would believe that he was not
impartial. It cannot simply be inferred, solely from the political nature of
the Minister’s comments, that they give rise to a reasonable apprehension of
bias on the part of the Board member (Fehr v. Canada (National Parole Board)
(1995), 93 F.T.R. 161, at para. 22, quoting with approval Bertillo v.
Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1617).
(3) The decline in the success rate of
refugee claimants from the Czech Republic
[61]
The
Applicants assert that the decline in the level of acceptance of Czech refugee
claimants from above 90% to virtually zero strongly substantiates their
allegations of bias on the part of the Board. In support of this assertion,
they provided Board data which they claim indicates that the level of
acceptance of such claims dropped from almost 97% in the last quarter of 2008
to 80% in the first quarter of 2009, to 79% in the second quarter of 2009, to
30% in the third quarter of 2009, and then to virtually 0% in the last quarter
of 2009.
[62]
When
one takes account of abandonments and withdrawals, which accounted for
approximately 54% and 81% of all such claims finalized in 2008 and 2009,
respectively, the adjusted level of acceptance rates for those years is
approximately 30% and 10%, respectively. For the last two quarters of 2009,
those adjusted rates are approximately 4% and 0%. That said, it is important to
note that the total number of claims rejected in the fourth quarter of 2009 was
only 13.
[63]
In
the first two quarters of 2010, the adjusted rate of acceptances was
approximately 2%. However, over 70% of the finalized claims in that period were
withdrawn or abandoned.
[64]
In
Zrig, above, the applicant alleged, among other things, that a panel of
what was then the Refugee Division was biased and lacked independence. This
allegation was based on the fact that the two members of that panel had been
selected because they were less accepting of claimants from the Maghreb region
of Northern Africa. In rejecting this claim, Justice Tremblay-Lamer stated (at
para. 130):
Each claim
stands on its own merits and the members of the Refugee Division have to assess
each case based on the evidence and applicable law. Such an assertion reflects
directly on the integrity of the members in question and cannot be accepted
unless there is good evidence. Mere suspicion based on “rates” does not meet
the applicable standard of the well-informed individual considering the matter
in depth in a realistic and practical way.
[65]
This
scepticism of the relevance of statistics is particularly warranted in this case.
[66]
This
is because, after conducting a fact-finding mission of conditions faced by the
Roma in the Czech
Republic,
the Board released the two issue papers mentioned above. In Dunova,
above, those two papers were not included in the evidentiary record. Indeed,
the decision under review was made before the second of those papers was
released in July 2009. However, at para. 54 of my decision, I noted that “[i]t
is entirely possible that the content of [the first of those issue papers]
affected the number of accepted, rejected, abandoned and withdrawn refugee claims
by Roma from the Czech Republic.”
[67]
In
Gabor, above, where the applicant relied on the same 2008 and 2009 statistics
discussed above, Justice Zinn stated, at para. 30: “Absent evidentiary support
divorcing [the Board’s two issue papers] from the acceptance rate for refugee
claims, the submission of the applicant is mere speculation and insufficient to
warrant the conclusion he urges upon the Court.”
[68]
Now
that I have had an opportunity to review the Board’s two issue papers, I am
satisfied that content of those papers provides an entirely plausible
explanation for the decline in the level of acceptance of refugee claimants
from the Czech Republic, from the last quarter of 2008 to the second quarter of
2010.
(4) The alleged corruption of Board
members
[69]
In
their written submissions, the Applicants claim that “the criminal misconduct
and corruption of some Board Members” has contributed to undermining the
integrity and impartiality of the Board. In his oral submissions, counsel for
the Applicant went further and made the sweeping claim that the Board as an
organization is “corrupt” and “rotten.”
[70]
The
evidence adduced by the Applicants in support of this very serious allegation consisted
of nine news articles spanning the period 1992 to 2010 and a 2007 posting that
appeared on the website of the Conservative Party of Canada. The news articles
reported on: (i) the convictions or firings of four former Board members for
criminal or inappropriate conduct; (ii) the removal of another Board member
from her job; (iii) investigations into the conduct of four other Board
members; (iv) the charging and eventual acquittal of another Board member; (v)
the appointment of another Board member after he pleaded guilty to five counts
of professional misconduct as a lawyer; (vi) the appointment of a Board member
who was the former Chief of Staff to former Haitian President Bertrand
Aristide; (vii) the political nature of appointments to the Board and the fact
that some appointees are poorly qualified for the job; and (viii) the pressure
that some former Board members felt to approve applications by refugee
claimants. The website posting commented upon patronage appointments to the
Board by the former Liberal government.
[71]
Keeping
in mind that there were a very large number of members of the Board during the
period covered by the above-mentioned news articles, I find the Applicants’
sweeping allegations that the Board as an organization is “corrupt” and
“rotten” to be entirely unfounded and bordering on unprofessional. Moreover,
there is absolutely nothing in those articles that would support the bias
allegations that the Applicants have raised in respect of the Board.
Summary
[72]
In
summary, I am satisfied that a reasonably informed person, viewing the matter
realistically and practically, would not reasonably apprehend the Board member
to have been biased against Roma refugee claimants from the Czech Republic, as
a result of: (i) the comments that were reported to have been made by the
Minister; (ii) his announcement of a visa restriction on visitors from the
Czech Republic; or (iii) the allegations that the Applicants have made with
respect to the history of bias at the Board and the impropriety of a few former
Board members. Moreover, I do not believe that the evidence adduced regarding
the decline in the level of acceptance of refugee claimants from the Czech Republic
substantiates the Applicants’ claims.
B.
Did the Board err by failing to conduct an appropriate analysis under s. 97 of
the IRPA?
[73]
The
Applicants submit that once the Board accepted their identities as citizens of
the Czech
Republic,
of Roma ethnicity, the Board was obliged to conduct an analysis under s. 97,
yet failed to do so.
[74]
I
disagree.
[75]
In
contrast to the situation in Bouaouni v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1211, the Board did not fail to
analyse the Applicants’ claims under section 97. Rather, it analysed them
together with their claims under section 96, which is permissible (Sida v. Canada (Minister of
Citizenship and Immigration), 2004 FC 901, at para. 15).
[76]
Whether the omission of a separate section 97 analysis
amounts to a reviewable error depends on the particular circumstances of each
case (Kandiah v. Canada
(Minister of Citizenship and Immigration), 2005 FC
181, at para. 16). Where no claims have been made or evidence
adduced that would warrant such a separate analysis, it will not be required (Brovina
v. Canada (Minister of Citizenship and
Immigration), 2004 FC 635, at paras. 17-18).
[77]
In the case at bar, the Board’s integrated assessment
focused on two issues, both which were relevant to the claims made by the
Applicants under each of sections 96 and 97 of the IRPA. These issues were
credibility and state protection. In this context, it was not necessary for the
Board to conduct a separate analysis of the Applicants’ claims under sections
96 and 97 of the IRPA, as those claims and the evidence adduced could
comfortably be assessed in an integrated fashion.
[78]
The Board’s decision makes it clear that the Applicants’
claims and supporting evidence were assessed in terms of the distinct
requirements of each of sections 96 and 97. As in Nagaratnam v. Canada (Minister of
Citizenship and Immigration),
2010 FC 204, at paras. 42-43, the Board’s conclusions plainly apply to both sections
of the IRPA. This was very different from the type of situation that arose in Kilic
v. Canada (Minister of Citizenship and Immigration), 2004 FC 84, where the
Board failed to explain the basis for its determination with respect to section
97 and to discuss in its integrated assessment claims that were relevant under
that section. In this case, the Board specifically stated, at the end of its
analysis: “There being no other evidence that the claimants would be at risk of
the harms delineated under section 97 of the IRPA, the claims pursuant to that
section fail as well.”
[79]
In
my view, on the particular facts of this case, it was reasonably open for the
Board to conduct a single integrated assessment of the Applicants’ claims under
sections 96 and 97 and to dispose of the Applicants’ claims under section 97 in
the manner quoted immediately above. I am unable to agree with the Applicants’
submission that the Board erred in this regard.
C.
Did
the Board err by misapprehending or ignoring evidence, or unreasonably
assessing the evidence as a whole?
[80]
The
Applicants submit that the Board erred by ignoring or selectively referring to much
of the evidence which contradicted its conclusion that they had failed to rebut
the presumption of state protection. They further assert that the Board: (i) completely
failed to explain why that evidence was rejected; (ii) failed to reasonably
explain the evidentiary basis upon which its conclusions were made; (iii) failed
to assess the extent to which efforts of the Czech government have been
effective in improving the situation of the Roma and in protecting them; and (iv)
made an unreasonable assessment of the evidence as a whole.
[81]
I
disagree.
[82]
In
support of their submissions, the Applicants rely on this Court’s decision in Kaleja
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 252. However, that case is
distinguishable on the basis that: (i) the applicants’ claims were
“uncontradicted”; and (ii) the decision that was set aside failed to
“sufficiently distinguish persecution from what the applicants experienced.” In
addition, there was only a single paragraph in the decision dealing with
country conditions, and the Court found that this “did not really address the
evidence regarding country conditions” (Kaleja, above, at paras. 21, 23
and 24).
[83]
In
the case at bar, as has been mentioned, the Board found that the principal
Applicant “was generally lacking in credibility.” It stated that it did not
believe that “any of the significant events that the claimant alleged happened
to her and her children, actually happened.” The Board then devoted over four
pages to its assessment of the issue of state protection. In the course of
doing so, it specifically acknowledged that Roma do face some discrimination
and that there have been some attacks perpetrated against Roma by skinheads,
neo-Nazis and other extremists. However, it also specifically found that:
i.
legislation
that has been enacted does in fact provide protection for the Roma;
ii.
the
fact that “the Czech Republic is a member of the European Union has had a
positive impact on the country by setting standards concerning human rights, as
well as [providing] access to the European Court of Human Rights and access to
multilateral programs such as the Decade of Roma Inclusion”;
iii.
the
establishment of programs known as Roma Police Assistants and Minority Liaison
Officers “have been helpful and represent progress in the relationship between
Roma and the authorities”;
iv.
other
programs established by the Ministry of the Interior to combat extremists “is
showing signs of success”;
v.
neo-Nazis
have been arrested and prosecuted;
vi.
the
police also have successfully prevented or broken up extremist clashes and
demonstrations;
vii.
the
judiciary has prosecuted hate crimes committed against Roma people on several
occasions;
viii.
the
Ombudsman has successfully intervened in areas such as housing but has yet to
receive any formal complaints against the police;
ix.
there
are many governmental agencies and non-governmental organizations (NGOs) available
to assist the Roma, including 400 Roma NGOs, the Czech Trade Inspectorate and
the Social Inclusion Agency; and
x.
“the
Czech government in recent years is making very serious strides to have this
discrimination overcome.”
[84]
Given
these findings, and the fact that the Board specifically addressed and rejected
on credibility grounds each of the claims made by the Applicants in their PIF
statements and testimony, I am satisfied that it was reasonably open to the
Board to conclude that the Applicants had failed to rebut the presumption of
state protection. Contrary to the Applicants’ submissions, it is readily
apparent from the foregoing findings made by the Board that the Board did in
fact: (i) explain the basis for its conclusion on the issue of state protection;
and (ii) assess the extent to which the efforts that have been taken by the
Czech government have been effective in assisting Roma and in providing
adequate state protection to them.
[85]
It
was also open to the Board to prefer the 2008 country documentation referred to
in its decision, to the more dated documentation referred to by the Applicants’
counsel in the hearing before the Board and in oral argument before this Court.
In addition, it was open to the Board to prefer the various sources referred to
in its decision, to the 2009 Report by Amnesty International that the
Applicants state should have been explicitly addressed. The Officer was not
required to “detail every piece of evidence provided and every argument
raised”, so long as the decision reached was within the bounds of
reasonableness (Rachewiski v. Canada (Minister of
Citizenship and Immigration), 2010 FC 244, at para. 17).
[86]
The
only other specific information that the Applicants assert should have been
addressed by the Board were passages from two pages in a 2008 report prepared
by the U.S. Department of State (DOS), entitled Human Rights Reports: Czech
Republic. Those pages appear at pages 115 and 116 of the Certified Tribunal
Record (CTR). In
its decision, the Board specifically quoted from one of those two pages. As
previously mentioned, the Board also specifically noted that there have been
demonstrations and even some attacks on Roma by skinheads, neo-Nazis and other
extremists. Having reviewed the DOS report in its entirety as well as the rest of
the CTR, I am satisfied that the Board did not fail to consider any other important
information in the DOS report that contradicted its conclusion. There was no requirement
on the Board to go further than it did in addressing information contained in
that DOS report (Zhou v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 1087 (C.A.); Hassan v. Canada (Minister of Employment and
Immigration) (1992), 147 N.R. 317, at para. 3 (F.C.A.); Ayala v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1258, at para. 10).
[87]
As
the Board aptly noted in its decision, “it is not enough for a claimant merely
to show that his government has not always been effective at protecting persons
in his particular situation” (Canada (Minister of Employment and
Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (C.A.); Zhuravlvev
v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3, at
para. 19 (T.D.)). The Applicants needed to go further and demonstrate, with
clear and convincing evidence, that the government of the Czech Republic is so
weak or corrupt that there are extensive shortcomings in its ability or
willingness to provide protection either to the public at large or to persons
similarly situated to them, as demonstrated by “a broad pattern of state
inability or refusal to extend protection” (Zhuravlvev, at para. 31; see
also Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724-725;
Villafranca, above; Resulaj v. Canada (Minister of
Citizenship and Immigration), 2006 FC 269, at para. 20; and Alfaro v.
Canada (Minister of Citizenship and Immigration), 2005 FC 92, at paras.
43-45). Ultimately, the Applicants failed to discharge their burden in this
regard.
[88]
In
addition to failing to provide clear and convincing documentary evidence on
this issue, the Applicants failed to demonstrate that they personally had made
failed attempts, despite reasonable efforts, to obtain state protection (Ward,
above; Santiago v. Canada (Minister of Citizenship and Immigration),
2008 FC 247, at para. 23; Sanchez v. Canada (Minister of Citizenship and
Immigration), 2008 FC 66, at paras. 11 to 13; Sanchez v. Canada
(Minister of Citizenship and Immigration), 2008 FC 134, at paras. 9-10; Cruz
v. Canada (Minister of Citizenship and Immigration), 2010 FC 929, at paras.
28 and 37).
[89]
Given
all of the foregoing, I am satisfied that the Board’s assessment of the
evidence as a whole was not unreasonable. The Board’s assessment was well
within "a range of possible, acceptable outcomes
which are defensible in respect of the facts and law" (Dunsmuir,
above).
[90]
The
Applicants also allege that the Board erred by failing to analyze whether they
would be unable to earn a living in the Czech Republic. I disagree.
Having rejected the Applicants’ claims of persecution on the basis of its
finding that the principal Applicant was generally lacking in credibility, the
Board was not obliged to consider whether the Applicants might face sufficient
discrimination in this regard to have a well-founded fear of persecution, as
contemplated by s. 96 of the IRPA (Odetoyinbo v. Canada (Minister of
Citizenship and Immigration), 2009 FC 501, at para. 7). This is not a type
of risk contemplated by s. 97 of the IRPA. It is also not a risk that was
mentioned in the Applicants’ PIF, in their respective narratives or in their
testimony before the Board.
[91]
In
addition, the Applicants allege that the Board failed to consider the various
forms of discrimination and persecution suffered by other Roma in the Czech Republic and to
assess whether such discrimination might be sufficient to establish the
well-foundedness of their fear of persecution. For the reasons provided in the
paragraph immediately above, I disagree.
[92]
The
Applicants further allege that the Board failed to assess whether Roma in the Czech Republic are
discriminated against in the provision of health care services and whether this
would put the Applicants, especially Sarka, who has a disability, at risk under
section 97 of the IRPA. However, in paragraph 20 of its decision, the Board
did assess this risk, even though it had previously stated that it did not
believe that any of the significant events that the principal Applicant alleged
happened to her and her children, actually happened. After noting that
this issue had not been “actively argued at the hearing,” the Board quoted the
following statement from the above-mentioned 2008 U.S. DOS report: “The law
prohibits discrimination against persons with disabilities in employment,
education, access to health care, and the provision of other state
services, and the government generally enforced these provisions”
(emphasis added). The Board then proceeded, in the next paragraph of its
decision, to state: “There being no other evidence that the claimants would be
at risk of the harms delineated under section 97 of the IRPA, the claims
pursuant to that section fail as well.” In addition, at paragraph 19 of its
decision, the Board found that the Czech government is making very serious
strides to overcome various types of discrimination, including discrimination
in the provision of social services. Accordingly, the Board did not in
fact fail to assess this issue, as asserted by the Applicants. In my view,
having regard to the particular facts of this case, the Board’s assessment of
this issue was not unreasonable.
[93]
In
summary, I am satisfied that the Board did not err by misapprehending or
ignoring evidence, or by unreasonably assessing the evidence as a whole. In my
view, the Board’s assessment of the evidence was within “a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, above). It was also appropriately transparent,
intelligible and justified.
D. Did the Board err by failing to consider whether the
various incidents of discrimination that they or similarly situated persons
experienced cumulatively amounted to persecution?
[94]
Relying
on this Court’s decision in Tetik v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1240, at para. 26, the Applicants
submit the Board erred by failing to consider whether the various incidents
that they or similarly situated persons experienced and continue to experience cumulatively
amounted to persecution. However, Tetik is distinguishable from the case
at bar. In that case, it does not appear that the Board questioned the
credibility of any of the Applicants’ claims. Rather, it found that the various
types of discrimination that they had experienced did not amount to
persecution, as contemplated by section 96 of the IRPA.
[95]
By
contrast, as I have already noted, in the case at bar the Board found that the
principal Applicant was generally lacking in credibility. In addition, it did
not believe any of her significant claims about what happened to her and her
children. Having made these findings, the Board was under no obligation to
proceed any further with its assessment of the Applicants’ claims under section
96 (Odetoynibo, above; Canada (Minister of
Citizenship and Immigration) v. Sellan, 2008 FCA 381, at para.
5).
VI. Conclusion
[96]
This
application for judicial review is dismissed.
[97]
The
Applicant suggested that consideration be given to certifying the following
question: “Should the Minister comment on the merits of cases from a particular
country?”
[98]
It
is by no means clear that the answer to this question would be dispositive of
the question that has been raised by the Applicants with respect to the bias of
the Board (Varela v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 145, at para. 28). Even if the
answer were negative, that would not necessarily suffice to enable a
determination to be made on the issue of bias that has been raised in this particular
case (Varela, above, at para. 37).
[99]
Assessments
of bias allegations invariably are highly dependent on the specific facts and context
of each particular case. Insofar as such allegations may be based on comments reported
to have been made by a Minister, they are also highly dependent on the specific
comments in question and on the context in which they were made.
[100] Moreover, the
question that has been suggested for certification is not a question that was
raised and dealt with in this proceeding. The question that was raised in this
proceeding is whether the specific comments reported to have been made by the
Minister in connection with Roma refugee claimants from the Czech
Republic
gave rise to a reasonable apprehension that the Board was biased when it
assessed and rejected the Applicants’ claims. Therefore, the suggested question
is not an appropriate one for certification (Varela, above, at para.
32).
[101] Accordingly,
I do not believe that the proposed question raises “a serious question of
general importance,” as contemplated by paragraph 74(d) of the IRPA.
[102] Therefore,
there is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application for judicial review is dismissed.
“Paul
S. Crampton”
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