Date: 20101109
Docket: IMM-1820-10
Citation: 2010 FC 1121
Ottawa, Ontario, November 9, 2010
PRESENT: The Honourable Justice Zinn
BETWEEN:
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LESZEK TADEUSZ DOLINSKI
MARIA SABINA GRABOWSKA
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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
[1]
The applicants,
husband and wife, seek judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, of a decision of the Refugee
Protection Division of the Immigration and Refugee Board. They submit that the
Board erred in giving little or no weight to a witness they called, the brother
of the female applicant, and further erred in determining that they had failed
to rebut the presumption of state protection.
[2]
I am unable to agree
with either submission and for the reasons that follow, this application is
dismissed.
Background
[3]
The applicants are Roma and Polish.
They arrived in Canada and claimed protection under ss. 96 and 97 of the Act
in April 2008, primarily on the basis of two incidents.
[4]
In the winter of 2004, Mr.
Dolinski was attacked by a group of young Poles because of his Roma identity.
He was severely injured and spent two months recovering in hospital. While Mr.
Dolinski was in hospital, his wife reported the assault to police but they did
not come to interview him in the hospital. When Mr. Dolinski was released he went
to see the police but was told that they had been unable to find the attackers
and that the case was closed.
[5]
In January 2008, a group of Poles
attacked the applicants’ home, throwing stones, breaking windows, and shouting
racist slurs. Mr. Dolinski ran upstairs and shouted for help through an open
window. The police arrived and took the applicants to the station for their
protection but advised them that it would be impossible to find the culprits as
the applicants were unable to provide their identity or a description. When
the Canadian visa requirement for Poland was dropped in March 2008, the applicants came to Canada and
claimed refugee status.
[6]
The Board accepted the applicants’
story and found that they were credible and that their subjective fear of
persecution in Poland was genuine. The Board did, however, note some
contradictions, exaggerations, and unsupported allegations in the applicants’
testimony. The Board noted that the applicants never availed themselves of
access to other European Union (EU) countries after Poland joined
the EU in May 2004. The Board also observed that returning to their home was
behaviour inconsistent with their alleged fear of being killed by Polish
racists.
[7]
At their hearing, the applicants
called as a witness Adolph Schmidt, the brother of the female applicant. He
had fled Poland in 2004 and obtained refugee status in Canada. In Poland he was
involved with the Roma community and claimed to be informed about the current
situation facing Roma in Poland. The Board gave little weight to Mr. Schmidt’s
evidence for the following reasons:
The witness
gave his opinion on many subjects. He adduced no independent objective
evidence to corroborate these opinions. … Given that the witness has an obvious
bias, as an expatriate Roma, as a successful refugee claimant, and as the
brother of the principal claimant’s spouse, and given the fact that he left
Poland in 2004, the year it joined the EU, I find his objectivity and his
expertise on current conditions in Poland lacking, and therefore give little or
no weight to his testimony and I prefer to rely on the more current documentary
evidence produced in the NDP [National Documentation Package] from more
objective sources.
[8]
Having concluded that
the applicants were credible and their fears subjectively well-founded, the
Board proceeded to consider whether their subjective fear was objectively
well-founded in the context of state protection. The Board found that state
protection was available to the applicants in Poland, and noted that Poland is a democratic state and a member of the EU, and that
accordingly there was a strong presumption of state protection, which must be
rebutted by the applicants on the basis of “clear and convincing” evidence.
[9]
The Board accepted
the applicants’ argument that the existence of policies promoting human rights
and equality is insufficient, by itself, to show state protection, but
nonetheless found that Poland was not simply supporting equality rhetorically
but was taking concrete measures to assist Roma and other minorities.
[10]
The Board also accepted
that discrimination against Roma continues in Poland,
that Roma have been physically assaulted in Poland and that many obstacles
remain to Roma achieving complete equality with ethnic Poles in Poland. However, the Board noted documentary evidence showing that
since joining the EU, Poland has taken measures to mitigate
discrimination against Roma, including funding education, health, and
employment programs targeting Roma.
[11]
The Board reviewed
the events on the night when the applicants’ home was vandalized, noting that
the police took the applicants to the police station, and observed that between
the night their home was attacked and their departure for Canada there was no
further incident. The Board noted that following the two incidents, the
applicants did not approach other state organizations, such as the Commission
for Civil Rights or the Prosecutor’s Office. The Board clearly stated that the
state did provide protection to the applicants, and that the Commission for
Civil Rights and the Prosecutor’s Office provide additional avenues to access
state protection.
[12]
The Board relied on Camacho
v. Canada (Minister of Employment and Immigration), 2007 FC 830, for the proposition that
in the absence of a compelling explanation, a failure to pursue state
protection will be fatal to a refugee claim. The Board found that “[m]istrust
and dislike of all Poles are not compelling reasons which rebut the presumption
that state protection exists in Poland.” The Board concluded that the
applicants had failed to provide clear and convincing evidence rebutting the
presumption of state protection in Poland and accordingly dismissed their claims.
Issues
[13]
The issues in this
application are the following:
1.
What is the
appropriate standard of review?
2.
Whether the Board
erred by assigning little weight to Mr. Schmidt’s evidence.
3.
Whether the Board
erred in its finding of state protection.
Analysis
1. Standard of Review
[14]
The applicants submit
that the Board’s formulation of the test for state protection is reviewable on
the correctness standard and say that the test applied by the Board was whether
Poland had shown a “commitment to human
rights.”
[15]
The standard of
review for the Board’s assessment of state protection is reasonableness: see Cervantes
v. Canada (Minister of Citizenship and
Immigration), 2008 FC
680; Ruiz v. Canada (Minister of Citizenship and Immigration), 2009 FC
337; Popov v. Canada (Minister of Citizenship and
Immigration), 2009 FC
898.
[16]
If the Board errs in
stating the proper test for state protection then the applicant may be correct
that this finding would be subject to the correctness standard. I have
concluded, however, that the applicants’ submission in this case regarding the
formulation of the test for state protection is based on a misinterpretation of
the Board’s reasons. The Board never said commitment to human rights was the
test for state protection; it merely considered this as one factor when
examining state protection.
[17]
Accordingly, the
errors alleged by the applicants are all reviewable on the standard of
reasonableness.
2. Weighing Evidence
[18]
The applicants submit that it was
inappropriate for the Board to discount the evidence of their witness, Mr.
Schmidt. The applicants note that they presented the Board with evidence of
his credibility, including a letter from Steven Spielberg and other evidence of
his work as a community leader and contributor to an effort to document oral
evidence about the Holocaust in Eastern
Europe (both of the applicants had
family members interned or murdered in concentration camps).
[19]
The applicants submit that in
finding Mr. Schmidt’s evidence outdated, the Board ignored his testimony
regarding how he had kept informed about the situation facing Roma in Poland through
regular contact with Roma still living there. The applicants also say that the
Board’s decision ignored the fact that the witness was a “similarly situated
person” with extensive knowledge of the Roma population and the problems Roma face
in Poland. The applicants submit that none of the reasons cited by the Board for
not giving much weight to Mr. Schmidt’s testimony suggest that the evidence he
provided is untrustworthy.
[20]
The applicants submit that the
Board’s finding that Mr. Schmidt had an “obvious bias” raises a reasonable
apprehension of bias, and rely on Gonzalez v. Canada (Minister of Citizenship and Immigration), [1991]
F.C.J. No. 408 (C.A.), where the Court of Appeal found that the Board’s refusal
to hear from a witness who was a refugee from the same country as the claimant
raised a reasonable apprehension of bias. The applicants say that although
their witness was not excluded from testifying, he was effectively excluded
when the Board disregarded his testimony. The applicants say the testimony was
relevant as evidence of a similarly situated person and showed why the applicants
could not have accessed state protection by approaching other state
organizations. The applicants also say that by preferring documentary evidence
the Board suggested that documentary evidence should always be preferred to a
refugee claimant’s evidence – logic that was sharply criticized by Justice
Snider in Coitinho v. Canada (Minister
of Citizenship and Immigration),
2004 FC 1037.
[21]
I agree with the
applicants that some of the reasons the Board offered for dismissing Mr.
Schmidt’s testimony (his Roma background, status as a refugee, and relation to
the applicants) were unreasonable. However, the decision with regards to the
testimony was not unreasonable as a whole because the Board offered a distinct
alternative and valid reason for rejecting his testimony: his knowledge was
outdated. In any case, the Board found that state protection had in fact been
provided to the applicants, regardless of any presumption which Mr. Schmidt’s
evidence may have helped to rebut.
[22]
In Ray v. Canada (Minister of Citizenship and Immigration), 2006 FC 731, at para. 39, Justice
Teitelbaum, in the context of a PRRA application, made it clear that
association to an applicant, by itself, is not grounds for giving evidence
little weight:
I agree with the Applicant that the PRRA
Officer erred by granting little probative value to the letters on the basis
that the letters support the applicant's personal interest. The mere fact that
the letters were written by the Applicants’ relatives is insufficient grounds,
without other evidence of dishonesty or other improper conduct on the
relatives' part, to accord their letters little weight.
In
Obeng v. Canada (Minister
of Citizenship and Immigration),
2009 FC 61, Justice de Montigny declined to certify a question about evidence
from family members and friends on the basis that the issue had already been
addressed in Ray.
[23]
The Board’s finding
that Mr. Schmidt had “obvious bias” because of his status as an expatriate Roma
and as a refugee claimant was therefore unreasonable.
[24]
Despite these
problems, it is clear that the main reason for not assigning Mr. Schmidt’s
testimony much weight was that his evidence was outdated because he had left Poland in 2004. The Board, as it was entitled to do, weighed the
evidence before it and preferred more current documentary evidence. This was
reasonable, especially considering that the changes in Poland which occurred after it joined the EU in 2004 were an
important part of the Board’s analysis regarding state protection. For this
same reason the applicants’ submission regarding Mr. Schmidt being a “similarly
situated person” must fail, given the Board’s clear finding that the current
situation facing Roma in Poland is not the same as it was in 2004, when Mr.
Schmidt left Poland. Furthermore, Mr. Schmidt was not purporting to provide
any evidence specifically relating to the applicants. His evidence was
directed to general country conditions and was available from other sources.
[25]
In my assessment, the
Board’s analysis of Mr. Schmidt’s testimony falls short of disclosing a
reasonable apprehension of bias. This is not the same situation as in Baker
v. Canada (Minister
of Citizenship and Immigration),
[1999] 2 S.C.R. 817, where the officer’s notes demonstrated a closed mind and
the influence of stereotypes. The Board made no negative findings about Mr.
Schmidt’s credibility, but rather found that he lacked objectivity and that his
evidence was outdated.
3. State Protection Analysis
[26]
A reading of the
decision makes it clear that the Board found not only that the applicants had
failed to rebut the presumption of state protection, but also that the
applicants had in fact been provided with state protection. At paras. 20-21 of
the Board’s decision, the Member wrote that:
The principal claimant then testified
that he asked the police to take him and his wife to the police station for
their safety as he feared the assailants might be hiding. He was asked if they
took him to the police station and he and his wife said yes. The claimants
later went to a cousin’s home and returned to their house the next day where
they remained until their departure for Canada without further incident. The principal
claimant was asked if he thought that when the police took him and his wife to
the police station the night of the January 2008 rock throwing incident that
this represented the provision of state protection and he said no.
He was asked to explain why it did not
represent state protection. He said it did not because he had asked them to
take he and his wife to the station and “if they wanted to help me they would
have taken fingerprints.” Asked what he expected them to take fingerprints
from, the principal claimant said the broken window glass and other people.
Given that, according to their narrative and their oral testimony rocks were
thrown at the windows thereby breaking them, I cannot see how the police could
reasonably be expected the check for prints on window glass when according to
the claimants’ own testimony the windows were broken by thrown rocks.
[27]
A finding that state
protection has been provided is fatal to the argument that the subjective fear
is supported by the objective evidence.
[28]
I do not accept the
submission that the Board erred in failing to find that the applicants faced
persecution based on “cumulative grounds”. In Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49 (C.A.), the Court
of Appeal held that analyzing events in isolation defeats the purpose of
cumulative determination. However, it is clear that in this case the Board did
not improperly focus on one event, but considered the cumulative effect of the
applicants’ experiences.
[29]
None of the arguments
raised by the applicants bring the decision outside of “the range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir
v. New Brunswick, 2008 SCC 9. The Board reasonably found
that the applicants had been provided with state protection and had failed to
provide clear and convincing proof rebutting the presumption of state
protection in Poland. Accordingly, this application is
dismissed.
[30]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1. This
application is dismissed; and
2. No
question is certified.
“Russel
W. Zinn”
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