Date: 20100304
Docket: IMM-1306-09
Citation: 2010 FC 252
Ottawa, Ontario, March 4,
2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MIROSLAV KALEJA
GRETA KALEJOVA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is a judicial review of a Refugee Protection Division (the Board) decision
dated February 9, 2009 refusing the applicants’ refugee status claim pursuant
to section 96 and subsection 97(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (the Act). The applicants, Miroslav Kaleja (the
principal applicant), and his daughter, Greta Kalejova (the minor applicant) are
Czech citizens of Roma ethnicity. The principal applicant’s two sons did not
appear at the Board hearing and are not parties to this judicial review
application.
[2]
The
applicants request that the Board’s decision be set aside and the matter be
referred to a different officer for redetermination.
Background
[3]
As
a child, the principal applicant was placed in a school for children with
special needs, where Roma students were usually sent. Before entering the
classroom, the teacher would always come outside and check his head and hands
for dirt and lice before allowing him in the classroom. Allegedly, this was
only done to the Roma children.
[4]
When
he finished his education, the principal applicant went into the army and he
claims he did not have the same privileges there as the other soldiers. He was
never allowed to rest between work assignments unlike the others.
[5]
The
principal applicant married his first wife at an early age and they had three
children. Due to his unemployment and financial problems, they had to live with
his wife’s parents. He then started to work as a musician in a hotel in Prague. He claims
the housing and financial problems were the main reason for his divorce in
1993.
[6]
In
1994, the principal applicant alleges being attacked by skinheads when he was
on his way home from work. He suffered stitches on his left leg from a baseball
bat and injuries to his back and shoulders. He also had a broken finger and
lost some teeth in the attack. Police officers driving by called an ambulance
for him, but they advised him not to say that skinheads had attacked him. A
police report was written to say that unknown perpetrators were responsible for
the attack. The principal applicant also stated that he was subjected to racial
insults over many years.
[7]
The
principal applicant arrived in Canada in January 16, 2008 and claimed refugee
protection on February 5, 2008.
[8]
Greta
Kalejova, according to her father’s allegations, has been bullied at school
because of her ethnicity, but when the principal applicant and his wife
complained, the principal told them to be glad their daughter was attending the
school and nothing was done.
Applicants’ Written Submissions
[9]
The
applicants submit that they were deprived of legal aid under questionable
circumstances and that this justifies a judicial review. Former counsel from
the Legal Aid office provided an opinion to the effect that the applicants have
an excellent chance of succeeding before the Board. However, they were
thereafter refused further coverage. The applicants were not in a financial
position to retain counsel privately. Proceeding without legal counsel was very
detrimental to their case. The Board misunderstood their situation, stating
that “they confirmed that they previously had counsel and they had dismissed
that person”.
[10]
On
the merits of their case, the applicants submit that the Board erred by finding
the applicants were not at risk of persecution. The Board made a clear error by
not considering that the attack the principal applicant experienced in 1994 did
not constitute persecution. The Board also erred in blaming the principal
applicant for not following up on the matter with the police. In fact, the
police would not do anything because he was only able to give a generic
description of the assailants. The Board further erred by entirely ignoring the
evidence regarding the rise of neo-Nazis in the Czech Republic. Finally, in
the daughter’s case, the Board did not apply the test for cumulative
persecution reasonably where there was sustained and systemic violation of
basic human rights.
[11]
The
applicants also submit that the Board erred in failing to comprehensively
review country conditions. Once the Board is satisfied that the applicants
belong to the claimed ethnic group, the Board, even if it disbelieves the
alleged incidents of persecution, still has a duty to review the country
conditions materials. Here, the Board only focused on the incidents of
discrimination and found them not serious enough. However, the applicants could
still have a well-founded fear of persecution simply because they are in an
environment hostile to Roma persons.
Respondent’s Written Submissions
[12]
The
respondent submits that the Legal Aid decision was not an error of the Board.
The Board bears no responsibility for the reasonableness of any decision of
Legal Aid. In immigration matters, the right to counsel is not absolute. As
long as a refugee claimant is afforded a fair hearing, the Court should not
intervene. In this case, the Board took more than adequate steps to ensure that
the applicants received a fair hearing and was clearly aware and attentive to
the fact that the applicants were unrepresented.
[13]
The
respondent submits that the finding that the alleged acts of discrimination did
not amount to persecution was reasonable. The Board considered the 1994 attack
and found that the seriousness of the incident was mitigated by the length of
time that had passed since then, as well as the fact that the principal applicant
did not follow up on his report to the police. These are reasonable findings.
The Board reasonably considered the cumulative effect of the incidents. The Board
did not err in finding that the basic human rights of the applicants had not
been affected in a fundamental way.
[14]
The
respondent finally submits that the Board adequately assessed the country conditions.
The Board properly reviewed the country conditions documents. The member
acknowledged that the documents indicated that Roma in the Czech Republic face
societal discrimination. However, the Board, after considering the documentary
evidence and the testimony, concluded the various acts of discrimination faced
by the applicants did not amount to persecution. This conclusion is within a
range of reasonable outcomes.
Issues
[15]
The
issues are:
1. What is the
applicable standard of review?
2. Is the Board’s decision
reviewable because the applicants were unrepresented by Legal Aid?
3. Was the Board’s
conclusion that the applicants did not have a well-founded fear of persecution
reasonable?
Analysis and Decision
[16]
Issue
1
What is the applicable
standard of review?
If the decision is reviewable
because of the lack of representation, the only potential error imputable to
the Board would be a breach of procedural fairness in proceeding with the
hearing although the applicants were unrepresented. The standard would
therefore be correctness (see Austria v. Canada (Minister of Citizenship and
Immigration), 2006 FC 423, [2006] F.C.J. No. 597 at paragraph 3).
[17]
The
applicants’ argument about the treatment of the evidence on country conditions
can be viewed as a question of sufficiency of reasons and therefore a matter of
procedural fairness (see Junusmin v. Canada (Minister of
Citizenship and Immigration) 2009 FC 673, [2009] F.C.J. No. 844
at paragraph 23).
[18]
However,
the applicants did not address this issue from a sufficiency of reasons
perspective, they alleged the Board disregarded the evidence on country
conditions. If this issue is to be viewed in this perspective, it is a matter
of the assessment of evidence by the Board and it is a question of fact. In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, the
Supreme Court held that questions of fact are usually reviewable under the
reasonableness standard.
[19]
As
for the Board’s ultimate finding on persecution, it is a mixed question of fact
and law. It is about the application of sections 96 and 97 of the Act in the applicants’
specific situation. The standard of review for this matter is reasonableness.
As noted in Sagharichi
v. Canada (Minister of Employment and
Immigration) (1993),
182 N.R. 398 (C.A.) at paragraph 3:
It is true also that the identification of persecution behind
incidents of discrimination or harassment is not purely a question of fact but
a mixed question of law and fact, legal concepts being involved. It remains, however,
that, in all cases, it is for the Board to draw the conclusion in a particular
factual context by proceeding with a careful analysis of the evidence adduced
and a proper balancing of the various elements contained therein, and the
intervention of this Court is not warranted unless the conclusion reached
appears to be capricious or unreasonable.
[20]
I
wish to deal first with Issue 3.
[21]
Issue
3
Was the Board’s
conclusion that the applicants did not have a well-founded fear of persecution
reasonable?
The Board
focused in its decision on the objective fear of the applicants and the seriousness
of the discriminatory acts they were subjected to. The Board wrote one
paragraph on the country conditions in the Czech Republic for
persons of Roma descent. This paragraph reads as follows:
I acknowledge the documentary evidence
which states, “Random violence, rallies and vandalism by neo-Nazis and
skinheads groups against Roma occurred throughout the year. Societal
discrimination against minorities, especially in Roma, continued and a lack of
an equitable education, housing and employment opportunities for Roma
persisted.” “the laws prohibit discrimination based on race, gender,
disability, language or social status; however significant societal
discrimination against Roma and women persisted.” However, the examples of
discrimination given by the claimants in this case do not indicate that they
have been subjected to this level of persecution.
[22]
This
does not respect the requirement of an “existence of justification,
transparency and intelligibility within the decision-making process” (see Dunsmuir
above at paragraph 47).
[23]
In
fact, there
is a link missing in the reasoning chain. The member stated he acknowledged the
existence of serious societal discrimination of Roma in the Czech Republic and then jumped back to
his conclusion on the applicants’ objective fear, stating the alleged incidents
are not serious enough to amount to persecution. Although the applicants’ uncontradicted
story contained examples of skinhead attacks, discrimination in the education system
and a lack of employment opportunities, the member declared the case is
different from the level of persecution generally experienced by Roma. The
decision does not sufficiently distinguish persecution from what the applicants
experienced. In Mahanandan v. Canada (Minister of Employment and Immigration) (1994), 49 A.C.W.S. (3d)
1292, [1994] F.C.J. No. 1181 at paragraph 8, the Federal Court of Appeal wrote:
Where, as here, documentary evidence of the kind in issue here is
received in evidence at a hearing which could conceivably affect the Board's
appreciation of an Appellant's claim to be a Convention refugee, it seems to us
that the Board is required to go beyond a bare acknowledgment of its having
been received and to indicate, in its reasons, the impact, if any, that such
evidence had upon the Applicant's claim. As I have already said, the Board
failed to do so in this case. This, in our view was a fatal omission, as a
result of which the decision cannot stand.
[24]
The
member did not really address the evidence regarding country conditions. He
simply mentioned it. But since this evidence contradicted his determination, he
should have explained more significantly why he distinguished the applicants’
case. In Junusmin above, at paragraph 38:
The Board member is presumed to have considered all the evidence
without the need to address every piece of evidence. Nevertheless, the Board
member has a duty to address in his reasons any evidence directly contradicting
conclusions on a key aspect of a determination.
[25]
I
agree with the applicants’ argument that the Board had a duty to canvass the
country conditions materials if it came to the conclusion that they are members
of a persecuted group. The case law cited by the applicants involves young male
Tamil from Sri-Lanka, but the principle that documentary evidence on
persecution of a particular social group should be seriously evaluated is
applicable to Roma cases. In a case involving a Hungarian Roma, Sinko v. Canada (Minister of Citizenship and Immigration), (2002) 116 A.C.W.S. (3d) 242, [2002] F.C.J.
No.903 at paragraph 23, the Court wrote:
The
Board denied the applicants' claims because it did not find them credible.
However, I am of the view that, in the circumstances of this case, there was
before the Board independent and credible documentary evidence that was not
considered. The Board should have expressly assessed this evidence in its
reasons and by failing to do so, I am left to conclude that it made its decision
without regard to the material before it. I deem this evidence sufficiently
important and material to the claim that, had it been considered, it could have
been capable of supporting a positive determination of the refugee claim.
[26]
As
a result of my findings, I am of the view that the Board made a reviewable
error. The decision of the Board must be set aside and the matter referred to a
differently constituted panel of the Board for redetermination.
[27]
Because
of my finding on Issue 3, I need not deal with the other issue.
[28]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[29]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
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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.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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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.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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