Date: 20110408
Docket: IMM-3940-10
Citation: 2011 FC 443
Ottawa, Ontario, April 8, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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ANNA FERENCOVA
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Applicant
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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
applicant is a citizen of the Czech Republic and a member of the Roma
minority. She sought judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision dated
June 7, 2010 by a member of the Immigration and Refugee Board, determining that
the applicant is not a Convention refugee or person in need of protection,
pursuant to sections 96 and 97 of IRPA.
[2]
The
applicant arrived in Canada on December 8, 2008 with her husband who
is now deceased. The couple claimed protection on the ground of persecution by
reason of their ethnicity.
[3]
At
the hearing of the claim, the applicant's counsel brought a preliminary motion
to stay the proceedings pending the outcome of a decision by this Court in
another file. The applicant argued that certain comments made by the Minister
of Citizenship and Immigration (the Minister) disclosed a reasonable
apprehension of bias against Czech Roma. A similar argument had been raised in
the other case. The hearing in this matter proceeded and the Member rendered a decision
on the motion at the conclusion.
DECISION
UNDER REVIEW:
[4]
The
Board Member determined that the Minister's comments did not give rise to a
reasonable apprehension of bias because the Board is an independent,
quasi-judicial body. The Member noted that the comments did not go to the
merits of the applicants’ claim and that the Minister did not criticize any of
the Board's decisions involving Czech Roma claimants. The Member cited the
decision of this Court in Dunova v. Canada (Citizenship
and Immigration), 2010 FC 438, 367 F.T.R. 89 in support of the disposition
of the motion.
[5]
With
respect to the merits of the claim, the Member accepted that Czech Roma are
discriminated against but found that the cumulative effect of this
discrimination fell short of persecution and that adequate state protection was
available. The applicant had not sought help from the police in many years. The
Member concluded that it was unreasonable for her not to have availed herself
of state protection given the significant changes in the Czech Republic in
that period. There was insufficient evidence, in the Member’s view, to find
that the applicant was in need of protection because of the denial of health
care in the Czech
Republic.
ISSUES:
[6]
The
issues raised on this application are as follows:
a. Do the Minister’s comments
about Czech Roma give rise to a reasonable apprehension of bias?
b. Was the Board’s determination
that the discrimination did not amount to persecution reasonable?
c. Did the Board fail to conduct
a s. 97 analysis?
d. Did the Board fail to consider
evidence that supported the applicant’s claim?
ANALYSIS:
Standard of Review;
[7]
Under
section 18.1 (4) (b) of the Federal Courts Act, judicial intervention
is authorized where a federal board, commission or other tribunal has failed to
observe a principle of natural justice or procedural fairness: Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 43. When procedural fairness is invoked, the question is not whether the
decision was “correct” but whether the procedure used was fair. See: Ontario
(Commissioner Provincial Police) v. MacDonald, 2009 ONCA 805, 3 Admin
L.R. (5th) 278 at para. 37 and Bowater Mersey Paper Co. v.
Communications, Energy and Paperworkers Union of Canada, Local 141, 2010
NSCA 19, 3 Admin L.R. (5th) 261 at paras. 30-32.
[8]
Questions
of law such as whether the Board failed to conduct a s. 97 analysis attract the
correctness standard: Khosa at para 44. The issue of whether the Board
failed to consider evidence in the record is a factual one that attracts
deference: Khosa at para 46. Similarly, the Board’s determination that
the discrimination did not amount to persecution is based on an application of
the factual findings to the law. This determination also requires deference and
is reviewable on the standard of reasonableness: Kaleja v. Canada (Minister of
Citizenship & Immigration), 2010 FC 252, at para. 19.
Do the
Minister’s comments about Czech Roma give rise to a reasonable apprehension of
bias?
[9]
The
starting point in any analysis of an allegation of bias is the presumption that
the board or tribunal is impartial. The threshold which an applicant must meet
to establish bias is very high: Wewaykum Indian Band v. Canada, 2003 SCC
45, [2003] 2 S.C.R. 259; R.. v.Curragh Inc., [1997] 1 S.C.R. 537.
[10]
The
test for a disqualifying apprehension of bias and the proper manner of its
application are set out in the dissenting reasons of Justice Louis-Philippe
de
Grandpré in Committee for Justice and Liberty v. National Energy Board,
[1978] 1 S.C.R. 369 at pp. 394-95. His discussion of the principles was
subsequently applied by all members of the Supreme Court in R. v. S(R.D.),
[1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193 at para. 31. The test is
whether an informed person, viewing the matter realistically and practically
and having thought it through, would think it more likely than not that the
decision maker would unconsciously or consciously decide the issue unfairly.
The grounds must be substantial. A real likelihood or probability of bias must
be demonstrated. Mere suspicion is not enough.
[11]
The
applicant relies on the decision of the Federal Court of Appeal in Geza v.
Canada (Minister of Citizenship & Immigration), 2006 FCA 124, [2006] 4
F.C.R. 377 which found that a reasonable apprehension of bias arose from the
Board’s treatment of the cases of Hungarian Roma through the adoption of a lead
case strategy and the manner in which it was carried out. While a similar
procedure was not used by the Board in the case of the Czech Roma, the
applicant has attempted to ground the allegation that there is a reasonable
apprehension of bias in public comments made by the Minister, and in a chart of
statistics recording a decline in the success rate of Czech claims.
[12]
These
arguments were discussed by Justice Paul Crampton in Dunova, above. Dunova
dealt with a decision by a Pre-removal Risk Assessment (PRRA) officer. It was
argued that the Minister’s comments had fettered the officer’s discretion. There
was no evidence in Dunova that the officer was even aware of the
comments and the presumption of impartiality was applied.
[13]
At
paragraphs 56-59, Justice Crampton found that Geza was distinguishable
for several reasons, notably that the finding of an apprehension of bias was
based on the strategy employed by the Board to obtain a decision with
persuasive precedential value. Moreover, one of the architects of the lead case
strategy was also a member of the panel that determined the applicants’ claims.
In this case, there is no evidence that the Board has employed a similar
approach and no grounds to question the impartiality of the panel member.
[14]
With
respect to the decline in the success rate of Czech claims, I agree with
Justice Crampton’s comment at paragraph 54 that “scepticism of the relevance of
statistics is particularly warranted” for the reasons that he sets out in that
paragraph.
[15]
Justice
Russel Zinn addressed similar evidence and issues in Gabor v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1162 and in supplementary reasons
at 2010 FC 1231. Also before him were quotations from persons who were critical
of the Minister’s public statements, introduced as exhibits to the applicant’s
affidavit. He disposed of the evidence at paragraph 34 in the following terms:
Allegations
of the possibility or apprehension of bias by an independent decision-maker are
serious allegations. I agree with the respondent that the allegations in this
case “call into question the professionalism of the panel member, the
functioning of the administrative tribunal and the impartiality of
decision-making. They should be made in only the clearest of cases where the
grounds for the apprehension are substantial.” I find no substantial grounds
here for the allegations raised by the applicant. His allegations are
speculative and there is no evidence before the Court that the Board was or
could be influenced by the Minister’s statements.
[16]
Justice
Crampton had the opportunity to revisit these issues in Cervenakova v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1281, in an application for
review of a refugee decision by the Board. At paragraph 43 he made these
comments in distinguishing the facts in Geza from the matter before him:
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…
[17]
The
applicant submits that the missing link in Cervenakova can be found in paragraph
20 of the reasons in Geza. That paragraph refers to an e-mail
sent by a Board Member in May 1998. In that e-mail, as described, Mr. Gregory
James, a co-ordinating member of the Convention Refugee Determination Division
and the predecessor of the RPD, noted that he had recommended a similar lead
case strategy to deal with Czech Roma claims and expressed disappointment that
this suggestion had not been acted upon. If anything, the message indicates
that the Board had not followed through on the proposal as it had with the
claims that were before the Court in Geza. In my view, this does not
help the applicant’s case.
[18]
I
am satisfied 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 Member in this case would consciously or unconsciously decide the
refugee claim unfairly by reason of any external influence.
Was the Board’s
determination that the discrimination did not amount to persecution reasonable?
[19]
The
applicant submits that the Board erred in determining that she does not have a
well-founded fear of persecution after accepted evidence that Czech Roma are
persecuted. She contends that the Board failed to explain why the
discrimination documented in the objective evidence fell short of persecution.
[20]
The
Board accepted that the applicant had been the victim of discrimination but
found that the discrimination did not amount to persecution. The analysis of
this issue in the decision is brief but there was little evidence before the Board
to suggest that the applicant's fundamental rights were being violated. There
was no evidence, for example, that she was denied the opportunity to practice
her chosen employment. The Board recognized that the quality of the applicant's
life in the Czech
Republic was not
pleasant but that was not the standard on which to determine this question.
[21]
The
Board did not fail to consider any of the past discrimination suffered by the
applicant in determining whether that discrimination was persecutory and it did
not misstate the legal test for persecution. In any event, the Board's decision
was ultimately based on its state protection finding. The conclusion that the
applicant had failed to rebut the presumption of state protection was
reasonable based on the objective evidence. The applicant's belief that
protection was unavailable to her is insufficient to rebut the presumption and
the test is not, as was argued, that the protection must be effective but
rather whether it is adequate.
Did the Board
fail to conduct a s. 97 analysis?
[22]
The
applicant argues that the Board was obliged to conduct a separate s. 97
analysis because the Board had accepted that Czech Roma are persecuted. The
Board addressed all of the evidence about how Roma are treated in the Czech
Republic
in its s. 96 analysis. In Brovina v. Canada (Minister of Citizenship and
Immigration), 2004 FC 635, 254 F.T.R. 244, Justice Carolyn Layden-Stevenson,
as she then was, held at paragraph 18 that, “while a separate section 97
analysis is desirable, the failure to conduct such an analysis will not be
fatal in circumstances where there is no evidence that would require it”. See
also Soleimanian v Canada (Minister of
Citizenship & Immigration), 2004 FC 1660.
[23]
There
was evidence before the Board that Czech Roma are denied proper health care,
and that they have a reduced life expectancy as a result. The applicant submits
that the Board failed to conduct a meaningful s. 97 analysis of that evidence. I
note that in her testimony, the applicant had acknowledged that she had
received health care services in the Czech Republic when she needed them. She
clearly preferred the quality and type of care that she was receiving in Canada but that
does not establish that she was being denied care at home. In my view, the
Board adequately analyzed the evidence regarding health care.
Did the Board
fail to consider evidence that supported the applicant’s claim?
[24]
It
is trite law that the Board is presumed to have considered all of the evidence
before it and the failure to mention a specific piece of evidence does not
amount to a failure to consider it: K.L. v. Canada (Minister of Citizenship
& Immigration), 2009 FC 95.
[25]
The
applicant’s argument in respect of this issue is not entirely clear but appears
to focus on the Board’s analysis of the objective evidence regarding the
persecution of Czech Roma and the availability of state protection. The
applicant relies on Kaleja v. Canada (Minister of
Citizenship & Immigration), 2010 FC 252, which also involved a
refugee claim by Czech Roma. In that case, the Board focused on the events that
led to the claimants seeking refugee protection but determined that those
events did not amount to persecution. The Court set aside the decision because
of the Board's failure to analyze the documentary evidence of country
conditions.
[26]
In
this case, the Board did not fail to consider the documentary evidence. And,
unlike in Kaleja, the Board's decision here turned on the availability
of state protection. Its analysis of the question is extensive – over five
pages long. The Board is presumed to have considered all of the evidence before
it, and the lengthy analysis of state protection supports this conclusion.
Further, the applicant admitted that she had not sought help from the police in
over 25 years. She claimed that she believed that nothing would be accomplished
by going to the police because help had not been forthcoming when she had
sought it in the past. That evidence was insufficient to meet her burden of
showing that state protection was unavailable: Canada (Minister of
Employment & Immigration) v. Villafranca (F.C.A.) (1992), 99 D.L.R.
(4th) 334, 18 Imm. L.R. (2d) 130, leave to appeal to S.C.C. refused, [1993] 2
S.C.R. xi, 102 D.L.R. (4th) vi.
PROPOSED CERTIFIED
QUESTIONS:
[27]
The
applicant has proposed that the Court certify the following questions:
a. Do the Minister's comments
create a reasonable apprehension of bias when he made comments about the well-foundedness
of the Czech Roma claims?
b. Should a Minister ever comment
on the genuineness of refugee claims from a certain country?
[28]
As
set out in Canada (Minister of Citizenship and Immigration) v. Zazai,
2004 FCA 89, 318 N.R. 365, the threshold for certifying a question under IRPA
s. 74 is whether there is a serious question of general importance which would
be dispositive of an appeal. The question should be one that transcends the
interests of the immediate parties to the litigation and contemplates issues of
broad significance or general application.
[29]
The
applicant argues that the Court should apply the principles for certification
recently set out in Re Harkat, 2011 FC 75 by Justice Simon Noël. In that
case Justice Noël found it appropriate to certify questions relating to the
application of the Charter to security certificate proceedings, whether
or not they would be dispositive of an appeal, as the determination of those
matters would have an impact on the evolution of similar cases. In my view, the
circumstances of this matter do not call for a similar conclusion.
[30]
I
agree with the respondent that the first question posed by the applicant is not
of broad significance or general application as it essentially restates the
issue which was before the Court to be determined on its particular facts. The
Court has recently considered questions similar to that proposed by the
applicant and refused to certify them: Dunova, above; Gabor,
above; Zupko v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1319 at paragraphs 44-47.
[31]
The
second question simply invites speculation as to when, if ever, such comment by
a Minister is appropriate. Any answer to the question, assuming the Federal
Court of Appeal would entertain it, would not be dispositive of an appeal in
this case as I have found that the Minister’s comments did not influence the
outcome of the Board’s decision. I note that Justice Crampton refused to
certify a similar question in Cervenakova, above, at paragraphs 97-101.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application for
judicial review of the decision of the Refugee Protection Division dated June
7, 2010 is dismissed. No questions are certified.
“Richard
G. Mosley”
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