Date: 20101222
Docket: IMM-2091-10
Citation: 2010 FC 1319
Ottawa, Ontario, December 22,
2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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ROBERT ZUPKO
ZANET BENDIGOVA
(a.k.a. BENDIGOVA, ZANET)
KAMILA ZUPKOVA
SARA ZUPKOVA
ESTER ZUPKOVA
ROBERT ZUPKO
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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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REASONS FOR JUDGMENT AND
JUDGMENT
I. Background
[1]
The
Principal Applicant, Mr. Robert Zupko, his common-law wife and children
(collectively, the Applicants) are citizens of the Czech Republic. Because of alleged persecution in the
Czech Republic, due to their Roma ethnicity, the family seeks protection in
Canada pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA).
[2]
During
their hearing before the Refugee Protection Division of the Immigration and
Refugee Board (the Board), the Applicants were heard regarding their refugee
claims. In addition, they presented evidence of statements made by the Minister
of Citizenship and Immigration (the Minister), the Respondent in this
application. These statements, in their view, establish that there was a
reasonable apprehension of bias that the Board would be unable to reach a fair
decision on their application.
[3]
In a
decision dated March 16, 2009, the Board determined that there were no grounds
for the allegation of a reasonable apprehension of bias. In addition, having
considered the balance of the evidence before it, the Board concluded that the
Applicants were neither Convention refugees nor persons in need of protection
under IRPA. In addition to some concerns about credibility of the
Principal Applicant and his wife, the Board concluded that the Applicants had
failed to rebut the presumption of state protection.
II. Issues
[4]
The
Applicants seek to overturn the Board’s decision, raising the following issues:
1.
Did the
Board err in concluding that there was no reasonable apprehension of bias?
2.
Did the
Board err by relying on the wrong test for state protection?
3.
Did the
Board err:
a.
in basing
its finding that the Female Applicant’s claim of sterilization lacked
credibility on a misapprehension of the evidence and on an unreasonable
negative inference drawn from the omission of the forced sterilization in the
Personal Information Form (PIF) of both the Female and Principal Applicant;
b.
in failing
to consider the most recent documentary evidence on the lack of state
protection for Roma persons; or
c.
in failing
to conclude that the failure of the police to attend the scene of a crime was
evidence of the inadequacy of state protection?
III. Analysis
A. Standard of Review
[5]
The first
issue is a pure question of law; the Board’s conclusion will be reviewed on a
standard of correctness. The second issue – the application of the correct test
to the issue of state protection – can also be considered to be a question of
law reviewable on the standard of correctness. However, the final issues
involve the overall conclusion of the Board as to the credibility of the
Applicants and the existence of adequate state protection. The Board’s reasons
and conclusions, on this issue, will be reviewed on a standard of
reasonableness. On this standard, the Court should not intervene where the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 47).
[6]
I turn to
the five issues argued by the Applicants.
B. Did the Board err in concluding that there was
no reasonable apprehension of bias?
[7]
At the
hearing before the Board, the Applicants asserted that the statements by the
Minister raised a reasonable apprehension of institutional bias. In their
submissions, the Board could be unduly influenced by statements made by the
Minister. It was argued that, since the Minister is directly involved with the
appointment and reappointment of members of the Immigration and Refugee Board
of Canada, an informed person viewing the matter realistically and practically
would conclude that the decision maker would not be able to decide Czech Roma
claims fairly.
[8]
The
Applicants relied on an April 2009 article containing the Minister’s comments,
a July 2009 magazine piece commenting on the Minister’s comments, and statistical
information comparing the results of the Czech Roma cases before the Board from
2008 and parts of 2009.
[9]
In its
decision, the Board provides an analysis of all of the arguments and supporting
documents of the Applicants. The Board also had regard to relevant
jurisprudence (Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, 68
D.L.R. (3d) 716, Valente v. The Queen, [1985] 2 S.C.R. 673, 19 C.R.R.
354, Bell Canada v. Canadian Telephone
Employees Association,
[2003] 1 S.C.R. 884, 2003 SCC 36, Mohammad v. Canada (Minister of Employment &
Immigration), [1989]
2 F.C. 363, 55 D.L.R. (4th) 321). On this issue, the Board concluded that:
. . . I am satisfied that I, the IRB, and
in particular, the Refugee Protection Division, have sufficient institutional
independence, and that the circumstances outlined by counsel do not give rise
to a reasonable apprehension of bias.
[10]
Before me,
the Applicants argue that the Board’s conclusion was incorrect and that this
Court should determine that the comments by the Minister give rise to a
reasonable apprehension of bias.
[11]
As the
parties before me were aware, this very issue of reasonable apprehension of
bias has been considered and dealt with in three separate decisions:
·
Dunova
v. Canada (Minister of Citizenship and
Immigration),
2010 FC 438, 367 F.T.R. 89 (Dunova) (Justice Crampton);
·
Gabor
v. Canada (Minister of Citizenship and
Immigration),
2010 FC 1162 (Gabor) (Justice Zinn); and
·
Cervenakova
v. Canada (Minister of Citizenship and
Immigration),
2010 FC 1281 (Cervenakova) (Justice Crampton).
[12]
In each of
these cases, the Court rejected the arguments of the applicants. In the words
of Justice Zinn, in Gabor, above, at paragraph 35:
An informed person, viewing the matter
realistically and practically and having thought the matter through, would not
think it more likely than not that the Board would consciously or unconsciously
decide a refugee claim of a Czech Roma unfairly.
[13]
I also
note that counsel for the Applicants before me acknowledged that he was counsel
in the hearing of Gabor and that his arguments in that case were based
on the same evidence.
[14]
In light
of the existing jurisprudence on this very issue, I am of the view that this
case is one where the principle of judicial comity is directly applicable. As
stated by Justice Lemieux in Almrei v. Canada (Minister of Citizenship and
Immigration),
2007 FC 1025, 316 F.T.R. 49 at paragraphs 61-62:
The principle of judicial comity is
well-recognized by the judiciary in Canada.
Applied to decisions rendered by judges of the Federal Court, the principle is
to the effect that a substantially similar decision rendered by a judge of this
Court should be followed in the interest of advancing certainty in the law. . .
. [citations omitted.]
There are a number of exceptions to the
principle of judicial comity as expressed above they are:
1. The existence of a
different factual matrix or evidentiary basis between the two cases;
2.
Where the
issue to be decided is different;
3.
Where the
previous condition failed to consider legislation or binding authorities that
would have produced a different result, i.e., was manifestly wrong; and
4.
The
decision it followed would create an injustice.
[15]
In this
case, none of the exceptions apply. As admitted by counsel for the Applicants,
the “factual matrix” and the issue to be decided are identical. While the
Applicants expressed disagreement with the decision in Gabor, they
presented no argument that Justice Zinn had failed to consider legislation or
binding authorities that would have produced a different result. Finally, I can
see no injustice in the decisions of my colleagues.
[16]
As a
result, I adopt the reasoning and conclusion of Justices Zinn and Crampton in Dunova,
Gabor and Cervenakova. That is, I conclude that an informed
person, viewing the matter realistically and practically and having thought the
matter through, would not think it more likely than not that the Board would
consciously or unconsciously decide a refugee claim of a Czech Roma unfairly.
[17]
However,
even if I were not to apply the principle of judicial comity, I would still
reach the same conclusion. Rather than set out an extensive analysis, that
would be, in large part, repetitive of the reasons of my fellow judges in Dunova,
Gabor and Cervenakova, I will highlight the key reasons for
concluding that a reasonable apprehension of bias has not been demonstrated.
[18]
The source
of the Minister’s comments is two news articles:
·
In a
National Post news article dated April 15, 2009, it was reported that the
Minister, during an interview with Canwest News Service, made certain remarks
about Roma refugee claimants from the Czech
Republic, including that, “it is hard to believe that the Czech Republic is an island of persecution
in Europe.”
·
The July
22, 2009 edition of the web edition of Embassy Magazine (http://embassymag.ca/page/printpage/political_interference-7-22-2009)
reported comments of the Minister, including the following comment made on June
24, 2009: “If someone comes in and say the police have been beating the crap
out of them, the IRB panelists can then go to their report and say, ‘well
actually, there’s been no evidence of police brutality’.” This article also
referred to remarks of others, including Professors Peter Showler and Audrey
Macklin, who were critical of the comments of the Minister.
[19]
Without a
first-hand account of the entire interview or speech of the Minister (for
example, either a transcript or affidavit from someone who was present when the
comments were made), I have no knowledge of the context in which the remarks
were made. Similarly, comments attributed to Professors Peter Showler and
Audrey Macklin have not been confirmed by the alleged authors. In the presence
of the very serious allegation of apprehension of bias, one would expect better
evidence than selective statements taken from media sources.
[20]
I accept
that the Minister influences Governor-in-Council appointments and
reappointments of Board members. However, this is insufficient to found a claim
of a reasonable apprehension of bias. Under IRPA, the Board is
independent from Citizenship and Immigration Canada (CIC). The Board has its
own chairperson. Every member of the Board is statutorily required to swear an
oath of office requiring him or her to “faithfully, impartially and to the best
of my knowledge and ability, properly carry out the duties of a (member) of the
Immigration and Refugee Board”. Members of the Board are appointed for set
terms and are paid remuneration that is not dependent on how they decide cases.
They can only be removed from office for incapacity, misconduct, incompetence
or conflict of interest (See, for example, IRPA, ss. 152, 153, 156, 161,
162 and 170; Oath or Solemn Affirmation of Office Rules (Immigration and
Refugee Board), SOR/2002-231.). I have no evidence, beyond bare
speculation, that appointments are made on the basis of prospective members’
views of the Minister’s speeches or that the renewal of Board member
appointments is made on the basis of, or influenced by, their refugee claim
acceptance rates.
[21]
Much
reliance is placed by the Applicants on the reported statistics. The Applicants
submit that the drop in the accepted refugee claims from Roma citizens of the Czech Republic is evidence of the negative
impact that the Minister’s statements have had. The Applicants allege that the
Board’s statistics show that such refugee claims had a 94% acceptance rate in
2008 and an 81% acceptance rate between January and March 2009, the first full
quarter prior to the impugned statements. The acceptance rate in the quarter
after the statements were made (July to September 2009) dropped to 30%, and the
rate dropped to 0% in the last quarter of 2009.
[22]
The
problem with this argument is that there are other factors that could have
affected the decline in acceptance rates. I do not intend to embark on an
extensive statistical analysis (in part, because no such analysis was presented
by an expert in such analyses). However, I observe that the acceptance rate
could well have been a result of updated documentary evidence or by a number of
abandoned claims. Indeed, the rate of acceptance had begun (albeit not markedly
so) to decline even before the Minister’s comments. Without expert guidance, it
would be difficult to draw conclusions from such evidence unless the statistics
were overwhelming conclusive on their face or unless the statistics were
clearly supported by other reliable evidence. Statistics alone cannot establish
a reasonable apprehension of bias (see, Geza v. Canada (Minister of Citizenship and
Immigration),
2006 FCA 124, 52 Imm. L.R. (3d) 163 at para. 72; Zrig v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 1043, [2002] 1 F.C. 559 at para. 130).
[23]
The case
of Geza, above, where the Court of Appeal found a reasonable
apprehension of bias, is clearly distinguishable. In that case, the Court of
Appeal examined the Board practice of developing a “lead case” which would be
followed by subsequent panels. The “factual matrix” in Geza involved an
internal process in which various Board members, lawyers and staff of CIC
apparently contributed to and guided the decision-making process on certain
cases. The situation before me is far different, in that there is no evidence –
beyond a few reported comments and some questionable statistics – that impugns
the independence of the individual members of the Board.
[24]
In sum,
there is simply insufficient reliable and persuasive evidence to conclude that
the Minister’s comments raise a reasonable apprehension of bias in the decision
making of the Board on Czech Roma claims.
C. Did the Board err by relying on the wrong test
for state protection?
[25]
The
Applicants argue that the Board erred in its analysis of state protection by
applying a “serious efforts” test. The Applicants assert that the correct test
requires that the Board consider whether “effective” protection has been or is
being provided to the Roma community (Bobrik v. Canada (1994), 85 F.T.R.
13, [1994] F.C.J. No. 1364 (QL),; Kraitman v. Canada (Secretary
of State) (1993), 27 Imm. L.R. (2d) 283, [1994] F.C.J. No.
1063 (QL);
Wisdom-Hall v. Canada (Minister of Citizenship and Immigration), 2008 FC 685, [2008] F.C.J. No. 851 (QL); Deheza v. Canada (Minister of Citizenship and
Immigration),
2010 FC 521, [2010]
F.C.J. No. 639 (QL)).
[26]
Contrary
to the submission of the Applicants, the test for state protection is whether
there is “adequate” state protection (Carillo v. Canada (Minister of Citizenship and
Immigration),
2008 FCA 94, 69
Imm. L.R. (3d) 309).
Further, the
Federal Court of Appeal stated in Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d)
130, 99 D.L.R. (4th) 334 at paragraph 7:
No government that makes any claim to
democratic values or protection of human rights can guarantee the protection of
all of its citizens at all times. Thus, 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.
[27]
The
Applicants have not persuaded me the Board erred in applying the wrong test for
state protection.
D. Did the Board err
in its finding that the Female Applicant’s claim of sterilization lacked
credibility?
[28]
A central
element to the Applicants’ claim of persecution was the allegation that the
Female Applicant had been forced to undergo a tubal ligation after the birth of
her child. In its decision, the Board found that the Female Applicant’s claim
of having undergone forced sterilization lacked credibility. In particular, the
Board drew a negative inference from the fact that the Applicants had not
attempted to obtain any documentation from the hospital or from the
psychiatrist whom she saw subsequently, which could have supported her claim.
Moreover, the Applicants had not included this alleged event, which was central
to their claim, in their original PIF. The Board was only informed of the
alleged sterilization two days prior to the hearing through a letter from the
Applicants’ counsel.
[29]
The
Applicants claim that they did ask for documents at the time of the alleged
sterilization but were refused and that the Board’s statements that “she did
not try” to obtain the supporting document were wrong in fact. I do not agree
with the Applicants’ interpretation of the Board’s reasons on this point. A
review of the reasons make it clear that the Board understood that the Female
Applicant had asked for and been refused a copy of the document at the time of
the surgery. However, the point made by the Board is that she did not ask for
the hospital documentation for purposes of this hearing. Moreover, the Board
also noted that the Applicants could have requested corroborating documentation
from her treating psychologist “who was in fact helping her”. In the absence of
any corroborating documentation, the Board’s inference was not unreasonable.
[30]
The Applicants
claim the Board ought to have considered the demeanour of the Female Applicant
when she testified and taken into account the shame suffered by her when the
sterilization took place without her consent. According to the Female
Applicant’s affidavit, when she described the alleged events before the Board,
she was “trembling and crying”. The shame felt by the Female Applicant and her
demeanour do not alter the fact that either she or the Principal Applicant
could have tried to obtain documents from the hospital or the psychiatrist to
support this critical element of their claim. I also note that the Applicants
were given an opportunity to provide further documentation after the hearing
and failed to do so; this failure certainly cannot be explained by the
demeanour of the Female Applicant.
[31]
Finally,
the Applicants submit that the Board erred by drawing a negative inference from
their failure to include the alleged forced sterilization on their PIFs. They
point to s. 6(4) of the Refugee Protection Division Rules, SOR/2002-228,
which permits the Applicants to make amendments to their PIFs prior to the
hearing. In their view, once informed of the change (two days before the
hearing), the Board could not draw any negative inference from the omission in
the original PIF.
[32]
It is
well-established that the Board is entitled to draw a negative inference from
the omission of a critical element of a claim in the PIF. In Basseghi v. Canada (Minister of Citizenship and
Immigration), [1994]
F.C.J. No. 1867 (QL), 52 A.C.W.S. (3d) 165 at paragraph 33, Justice
Teitelbaum provided a concise statement on the law on the issue of PIF
omissions:
It is not incorrect to say that answers
given in a PIF should be brief but it is incorrect to say that the answers
should not be complete with all of the relevant facts. It is not enough for an
applicant to say that what he said in oral testimony was an elaboration. All
relevant and important facts should be included in one's PIF. The oral evidence
should go on to explain the information contained in the PIF.
[33]
I see no
principled reasons why the disclosure of a critical element two days before a
hearing should prevent the Board from drawing a negative inference from the
absence of such element in the original PIF. The point made by Justice
Teitelbaum is not changed; claimants should include all important facts in the
PIF and the Board is entitled to draw a negative inference from a failure to do
so.
[34]
In sum on
this issue, the Board’s finding that the Female Applicant’s claim of forced sterilization
was not credible was reasonably supported by the record.
E. Did the Board
err in failing to consider the most recent documentary evidence on the lack of
state protection for Roma?
[35]
The
Applicants submit that the Board erred by failing to consider relevant
documentary evidence. In their view, this recent evidence demonstrates that
violent attacks on the Roma are in fact on the rise.
[36]
The Board
is presumed to have considered all of the evidence before it. As stated by
Justice Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration)
(1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (QL)(Cepeda-Gutierrez) at paragraph 16:
[T]he reasons given by administrative
agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and
Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required
to refer to every piece of evidence that they received that is contrary to
their finding, and to explain how they dealt with it (see, for example, Hassan
v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317
(F.C.A.). That would be far too onerous a burden to impose upon administrative
decision-makers who may be struggling with a heavy case-load and inadequate
resources. A statement by the agency in its reasons for decision that, in
making its findings, it considered all the evidence before it, will often
suffice to assure the parties, and a reviewing court, that the agency directed
itself to the totality of the evidence when making its findings of fact.
[37]
The
obligation of a tribunal was succinctly described by the Ontario Court of
Appeal in Clifford v. Ontario Municipal Employees Retirement System,
2009 ONCA 670, [2009] O.J. No. 3900 (QL) at paragraph 40:
. . . the majority faulted the Tribunal
for not referring to evidence that could have led it to decide differently.
Again, I disagree. As I have described, reasons need not refer to every piece
of evidence to be sufficient, but must simply provide an adequate
explanation of the basis upon which the decision was reached. [Emphasis
added.]
[38]
Nevertheless,
I do accept that the failure to refer to a specific and critical document (such
as an individual’s psychological report) may raise a presumption that the Board
did not consider the document (Cepeda-Gutierrez, above, at para.
16). However, on the facts before me, the documentary evidence cited by the
Applicants was not directed to the Applicants personally. The Board, in its
reasons, demonstrated that it had read and understood the nature of the
contrary documentary evidence and provided an adequate explanation of the basis
upon which the decision was reached. I conclude that the evidence referred to
by the Applicants was not ignored.
F. Did the Board
err in failing to conclude that the failure of the police to attend the scene
of a crime was evidence of the inadequacy of state protection?
[39]
Before the
Board, when dealing with one alleged attack, the Applicants claimed that the
failure of the police to attend at the scene of the crime impugned the state’s
ability to protect its citizens from racially-motivated attacks. In responding
to this argument, the Board commented that, “It is difficult to understand what
benefit it would have been for police to go to the scene well after everyone had
left.” The Applicant asserts that the failure of the police to attend a crime
scene is clear evidence of the inadequacy of the state protection and that the
Board’s conclusion was unreasonable.
[40]
I might
agree with the Applicants if the evidence had demonstrated that police always
refuse to attend crime scenes. However, that is not the situation here. Reading
the balance of the paragraph in which the impugned statement is contained
provides context for the remark. In the specific situation, where the Applicants
were unable to provide any details of the alleged crime, the Board concluded
that this one-time failure to attend a crime scene did not bring the overall
ability or willingness of the state to provide protection into question. There
is no error.
IV. Further Submissions
[41]
Because
the case of Cervenakova, above, was released on the day of oral
submissions in this case, I allowed parties to make further written submissions
on how the decision in Cervenakova could impact on this judicial review.
Both parties provided comments. The Applicants drew to my attention a reference
in the decision to “a further inflammatory remark made by the Minister” and
provided arguments on how this remark could be seen to raise a reasonable
apprehension of bias. I have disregarded this attempt to augment the record
before me in this case. However, even if I were inclined to consider this new
evidence, it would not change my decision in this judicial review.
[42]
Further,
in their written submissions, the Applicants asserted that the Court, in Cervenakova,
and the Respondent, in this case, incorrectly applied the test for actual bias
rather than the test for a reasonable apprehension of bias. The arguments made
by the Applicants may be improper as they could have been made in the hearing
of this matter. However, to the extent that they are proper response to the
request for submissions and having carefully read the decision in Cervenakova,
I am not persuaded that Justice Crampton applied the incorrect test.
Accordingly, the principle of judicial comity remains applicable.
V. Conclusion
[43]
For these
reasons, the application for judicial review will be dismissed.
[44]
The
Applicants have proposed the following question for certification:
Do unequivocal comments made by the
Minister of Immigration [sic], namely that “it’s hard to believe the
Czech Republic is an island of persecution in Europe” give rise to a reasonable
apprehension of bias, notwithstanding the contemporaneous release of IRB issue
papers that are not unequivocal and are inconclusive on the same issue, and
given the dramatic drop in the acceptance rate of Czech Roma claims over the
relevant period.”
[45]
Alternatively,
the Applicants propose the following question:
Can opinions expressed by a Minister
about the resolution of cases assigned to an independent tribunal give rise to
a reasonable apprehension of bias, even where those opinions draw selectively
on internal documents produced by the independent tribunal?
[46]
The
Respondent opposes certification of either question.
[47]
As acknowledged
by the Applicants’ counsel, these are the same questions that were proposed to
Justice Zinn in Gabor, above. In Gabor v. Canada (Minister of Citizenship and
Immigration),
2010 FC 1231, Justice Zinn declined to certify either of these questions. For the
same reasons provided by Justice Zinn, I also decline to certify these
questions.
[48]
In a
letter to the Court dated December 21, 2010, counsel for the applicants
proposed three revised questions for certification. No further time was
requested by counsel or provided by the Court for proposing questions for
certification. The Court rejects the newly formulated questions.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
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