Date: 20100617
Docket: IMM-5590-09
Citation: 2010 FC 660
Toronto, Ontario, June 17,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ALEKSANDAR
ZHIVKOV TATARSKI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(the Board) where the Applicant, Aleksandar Zhikov Tatarski, was found not to
be a refugee or a person in need of protection.
[2]
The
Applicant is a citizen of Bulgaria of Roma ethnicity. While living there, he
was the victim of racially based persecution. At school he was often called
names by his classmates and
teachers refused to intervene. Eventually
he left school after grade 8 because he could no longer stand the treatment. He
was also the victim of four racially driven attacks. The first attack took
place when the Applicant was 13 years old and was again in November 2005. He
sought medical attention, then attempted to make a police complaint but was
refused. There were two attacks in 2006, the first in January and the second in
February. The Applicant required medical attention after both. He again went to
the District Police to report the January attack, his identity information was
taken but he was called derogatory names and treated rudely by police. After
the February attack, the Applicant again attempted to make a police report but
was told that the officers were busy with Bulgarian complaints and had no time
for gypsies. The Applicant claims that after this, he contemplated making a
complaint to the Prosecutor’s Office but was told by members of the Roma
community that the complaint would only cause him more problems.
[3]
Instead,
he made plans to leave Bulgaria. He arrived in the
United States, through a smuggler, on June 12, 2006 and remained there for two
months before coming to Canada and making a claim for refugee protection.
[4]
The
Applicant submits that the Board made numerous errors in concluding that he had
not rebutted the presumption of state protection.
[5]
The
Applicant first contends that his particular circumstances should have been a
significant factor in determining to what extent he had to pursue state
protection in order to conclude that he had rebutted the presumption. More
particularly, the facts that he was a minor when most of the attacks took
place, that he only had a grade 8 education, had only worked unskilled jobs, had
lived
his entire life in a Roma community in a
small town and that he had never left Bulgaria previously. He submits
that if his personal circumstances had been taken into consideration, his
attempts to obtain police protection should have been viewed as being
sufficient to rebut the presumption.
[6]
Secondly,
the Applicant contends that the Board erred in finding that he should have
sought assistance from the prosecutor’s office and the ombudsman office and
that his failure to do so leads to the conclusion that he did not rebut the
presumption of state protection. He emphasizes that he made four attempts to
seek police protection and that each time he was ignored and on at least one
occasion was mistreated by the police themselves. He makes a further argument
that both his claim and the evidence establish that the police are also agents
of persecution in his case, thus there was no need to seek additional
state protection. He also argues that there is no requirement that he avail
himself of the services of a lawyer as lawyers are not agents of the state and
need not be consulted in order to rebut the presumption of state protection.
[7]
The
Applicant raises the further issue that the Board did not properly assess the
evidence before it. The Applicant points to pieces of documentary evidence
which show that police in Bulgaria continue to act with
impunity and are not responsive to Roma complaints.
[8]
The
issues raised by the Applicant are reviewable on a standard of reasonableness (Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 47 and 53; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339 at paragraph 53). Accordingly, the Court is concerned with whether
or not the outcome falls within “a
range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir at paragraph
47).
[9]
At
the outset, I would emphasize that the Board accepted the Applicant’s testimony
with regard to the attacks and his numerous failed attempts to seek state
protection. The Board did not draw any adverse credibility inferences with
regard to issues that are central to the Applicant’s claim.
[10]
In
the recent decision of Mendoza v. Canada (Minister of Citizenship and
Immigration), 2010 FC 119, [2010] F.C.J. No. 132, my colleague Justice
Lemieux provides a summary of some of the legal principles applicable to state
protection (paragraph 33). From that summary, I would highlight the following
points: the claimant is expected to have taken all reasonable steps in the
circumstances to seek state protection from his persecutors; a claimant who
does not do so and alleges that the state offers ineffective or inadequate
protection bears an evidentiary and legal onus to convince the tribunal; where the
tribunal determines the applicant has failed to take steps to seek protection
this finding is only fatal to the claim if the tribunal also finds that
protection would have been reasonably forthcoming; a determination of
reasonably forthcoming requires that the tribunal examine the unique
characteristics of power and influence of the alleged persecutor on the
capability and willingness of the state to protect; where the board relies on
remedial legislation, the legislation in and of itself is not enough, there
must be evidence that the remedies have had a practical positive effect.
[11]
Furthermore,
I agree with the opinion in Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, 45 Imm. L.R. (3d) 58, where
it was held that, “where agents of the state are themselves the source of the
persecution in question, and where the applicant's credibility is not
undermined, the applicant can successfully rebut the presumption of state
protection without exhausting every conceivable recourse in the country. The
very fact that the agents of the state are the alleged perpetrators of
persecution undercuts the apparent democratic nature of the state’s
institutions, and correspondingly, the burden of proof” (paragraph 15).
[12]
Turning
now to the case at bar, the Board concluded that even though the Applicant had
sought police protection to no avail four times, state protection was available
to him as he could have turned to the prosecutor’s office, the ombudsman’s
office or a lawyer. It seems that the Board accepted that state protection was not
forthcoming and that the police were part of the continuing problems faced by
the Applicant. The Applicant’s Personal Information Form states that the
perpetrators of the 2001 beating told him that was what happened to
gypsies who bother the police. This was not put into question by the Board.
[13]
The
documentary evidence relied upon by the Board does not explain in what way the
prosecutor’s office would have provided protection to the Applicant, it does
not seem that the purpose of this office is to provide protection from crime,
nor does it comment on the effectiveness of taking one’s case to this office (Canada,
Immigration and Refugee Board, Recourse available to those with a complaint
of police inaction in response to crimes, harassment or discrimination;
organizations that would be of assistance in such cases (January 2003 - August
2005) (2 September 2005)). It does however state that Roma are more often
victims of police inaction than other groups.
This same documentary evidence states that
information on the response of the ombudsman’s office to police inaction could
not be found among the sources consulted and in an interview, the director of an
organization for the protection of human rights in Bulgaria, indicated
that in his view, the ombudsman had no real authority and can only make
recommendations.
[14]
Furthermore,
the judicial decisions stemming from the anti-discrimination legislation mentioned
by the Board involve civil suits filed in relation to refusals of services and
employment. There is no indication that this legislation could be used by
someone in the Applicant’s situation or that it would have been useful to him
in any way (European Roma Rights Centre, First Five Roma Rights Victories
under New Bulgarian Equality Law (30 September 2004)).
[15]
Also,
there is nothing in the jurisprudence to support the notion that in such a situation
the applicant has the further burden of seeking legal advice or launching an
action in court (Molnar v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1081, [2003] 2 F.C. 339 at paragraphs
24 to 26).
[16]
The
Board accepted that the Applicant was a victim of repeated violent attacks based
on his Roma ethnicity and that he had sought the protection of the state.
Indeed, the Board accepted that the Applicant had sought police assistance on
at least four separate occasions and on each occasion, was turned away and once
harassed. In my view, this is sufficient to establish that the Applicant
rebutted the presumption of state protection. Given the particular
circumstances in this case, once the Applicant sought assistance from
the police (four times) and they refused, there was no obligation for him to
turn to other sources.
[17]
In
light of the facts accepted by the Board, its assessment of the documentary
evidence before it and the jurisprudence of this Court, I am satisfied that the
conclusion that the Applicant had not rebutted the presumption of state
protection falls outside of the range of possible, acceptable outcomes which
are defensible in respect of the facts and law.
[18]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for judicial review is allowed.
The matter is remitted for redetermination by a newly constituted Board. No
question is certified.
“Michel Beaudry”
APPENDIX
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27.
|
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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