Docket: IMM-2577-11
Citation: 2011 FC 1407
Ottawa, Ontario, December 2, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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MILAN KOKY; ALENA KOKYOVA; MILAN KOKY; TOMAS KOKY; NATALIE KOKYOVA
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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
INTRODUCTION
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated 25 March 2011 (Decision), which refused the Applicants’
claim for protection as Convention refugees or persons in need of protection
under sections 96 and 97 of the Act
BACKGROUND
[2]
The
Principal Applicant, Milan Koky, his common-law wife, Alena Kokyova (Alena) and
their children, Tomas Koky (Tomas), Milan Koky (Milan), and Natalie Kokyova (Natalie)
are all citizens of the Czech Republic. They are all Roma. The
Applicants arrived in Canada together on 16 April 2009 and made their
claim for protection on 17 April 2009.
[3]
When
he was a child, the Principal Applicant says he experienced discrimination
because he is Roma. When he was attacked at school, he would defend himself and
was labelled a problem child by his teachers for fighting. Once, after he
started trade school in 1991, he was attacked in a washroom at school by a
group of skinheads. He went to the Principal of the school, but nothing was
done. When Alena was in elementary school, she too experienced discrimination
because she is Roma; she was often called names and laughed at by the other
children.
[4]
In
1996, the Principal Applicant was riding a train from work to his home when he
was attacked by a group of skinheads. He reported this attack to the police,
but they did not do anything, saying that there was nothing they could do
because there were no witnesses. To date, the Principal Applicant has not heard
if the police ever investigated his complaint. Alena says when she went to the
doctor she was often verbally harassed in the waiting room. Other women waiting
to see the doctor said things such as “gypsies go last” and “gypsies go to the
gas chamber.”
[5]
In
1999, the Principal Applicant went with Alena to a club with their friends. A
number of other Roma people were there with them. While they were at the club,
a group of fifteen skinheads entered, yelled racist comments, and “heiled” the
Roma in the club. The Principal Applicant was attacked with baseball bats. The
police were called but, by the time they arrived, the skinheads had left. The people
in the club told the police what had happened, but no arrests were made and no
charges were filed.
[6]
In
2003, shortly after Natalie was born, a group of skinheads threw rocks and
Molotov cocktails through the windows of the Applicants’ house. The skinheads
yelled that they would “destroy the gypsies.” On another occasion, skinheads
threw a brick into the room shared by Milan and Tomas; they refused
to sleep in that room afterward.
[7]
When
they came to Canada, the Applicants claimed protection based on the
discrimination they suffered in the Czech Republic. Their
claims were joined under subsection 49(1) of the Refugee Protection Division
Rules SOR/2002-228 and were heard together on 18 March 2011. At the
hearing, Alena and the children adopted the Principal Applicant’s PIF narrative
as their own, so the RPD determined all the claims based on that narrative. At
the hearing, the RPD examined only the Principal Applicant. After the hearing,
the RPD made its decision on 25 March 2011 and notified the Applicants on 29
March 2011.
DECISION
UNDER REVIEW
[8]
The
RPD found that the Applicants had established their identities by the official
documents they submitted. The RPD determined that the Applicants are neither Convention
refugees nor persons in need of protection. The Applicants were not Convention
refugees because there was no serious possibility of persecution if they were
returned to the Czech Republic. They were not persons in need of
protection because they had not rebutted the presumption of state protection.
Discrimination
versus Persecution
[9]
The
RPD found that the Principal Applicant had been discriminated against while he
was in elementary and trade school. It noted that, when asked at the hearing if
he had reported the 1991 attack to the police, he said that he had not. The
Principal Applicant said that, after reporting the 1996 attack, the police had
joked and said he was at fault because he had dark skin. He said at the hearing
that it would not make sense to go to another authority because the response
would be the same unless something serious happened. The Principal Applicant
had testified that, after the attack at the club in 1999, the police were more
interested in the physical damage to the club than the harm to the people there.
[10]
The
RPD found that the Applicants had suffered discrimination in the Czech Republic because they
are Roma. However, the RPD found that this discrimination did not amount to
persecution because it was not a sustained or systemic violation of their basic
human rights that demonstrated a failure of state protection. In evaluating
whether the Applicants had suffered persecution, the RPD noted Professor
Hathaway’s definition of persecution in The Law of Refugee Status (Toronto:Butterworths,
1991) and Justice LaForest’s dissent in Chan v Canada (Minister of
Employment and Immigration), [1995] 3 S.C.R. 593. The RPD found that
there was no persuasive evidence that the Applicants were persecuted in
education, employment, housing, or medical care (paragraph 20 of the Decision).
State Protection
[11]
The
RPD considered whether state protection was available to the Applicants in the Czech Republic. The
Federal Court of Appeal held in Carillo v Canada (Minister of Citizenship
and Immigration) 2008 FCA 94 that claimants alleging a lack of state
protection must persuade the RPD that, on a balance of probabilities, the
evidence establishes that state protection is inadequate. The RPD also noted
that the presumption of state protection can only be rebutted with clear and
convincing evidence of the state’s inability to protect. Further, the onus is
on a claimant to approach the state for protection and, while effectiveness of
state protection is relevant, the RPD said that the proper test is the adequacy
of protection and that the adequacy of protection can be measured by the
serious efforts that a state is making to protect its citizens.
[12]
The
RPD found that the Czech Republic is a democracy with free and fair elections,
so the presumption of state protection is strong, following Kadenko v Canada
(Minister of Citizenship and Immigration), [1996] FCJ No 1376 (FCA).
The RPD said that there was nothing before it to suggest that the Czech Republic is in a
state of complete breakdown. The RPD also noted that the Government of the
Czech Republic has taken steps to protect Roma people from discrimination,
including passing an anti-discrimination bill, introducing Roma Police
Assistants (RPAs) to liaise with the Roma community, the arrest and prosecution
of neo-Nazis, actively recruiting Roma to be police officers, training police
in dealing with minorities, and hiring Minority Liaison Officers (MLOs). Though
there was discrimination against Roma people, the Czech government was making
serious efforts to overcome that discrimination and to protect Roma people from
hate crimes.
[13]
The
RPD noted that the Principal Applicant went to the police after he was attacked
in 1996. It found, however, that he did not go to a higher authority when the
officers to whom he reported the attack did not take action. The RPD found that
the Principal Applicant did not take all reasonable steps to obtain state
protection in any of the attacks he suffered.
[14]
The
RPD took note that, on 12 March 2011, the Czech police intervened in a peaceful
protest by Roma people against a march by neo-Nazis. At that protest, the
police charged Roma demonstrators with horses and beat them with batons. The
Roma were attempting to block the route of the neo-Nazis; the police intervened
because the neo-Nazis had given prior notice of their march and the route they
would be following. The RPD found that a report, prepared by Amnesty
International and submitted at the hearing by the Applicants (AI Report),
contained a one-sided account. Accordingly, the RPD placed little weight on
this report, saying that though the police had used excessive force, they were
enforcing the law.
[15]
The
RPD concluded that there was no persuasive evidence that the police failed to
act appropriately with respect to the Applicants or similarly situated
individuals. The RPD also found that there was no persuasive evidence of a
sustained or systemic violation of the Applicants’ basic human rights which
demonstrated a failure of state protection. Because they failed to rebut the
presumption of state protection, the Applicants were not Convention refugees.
The RPD also found that the Applicants were not persons in need of protection.
STATUTORY
PROVISIONS
[16]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
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;
[…]
Person in Need of Protection
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
[…]
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Définition de «
réfugié »
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;
[…]
Personne à protéger
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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ISSUES
[17]
The
Applicants raise the following issues:
1)
Whether
the RPD applied the proper test for state protection; and
2)
Whether
the RPD’s finding that there was adequate state protection was reasonable.
STANDARD OF
REVIEW
[18]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of
review analysis need not be conducted in every instance. Instead, where the
standard of review applicable to a particular question before the court is
well-settled by past jurisprudence, the reviewing court may adopt that standard
of review. Only where this search proves fruitless must the reviewing court
undertake a consideration of the four factors comprising the standard of review
analysis.
[19]
In
Saeed v Canada (Minister of Citizenship and Immigration) 2006 FC
1016, Justice Yves de Montigny held at paragraph 35 that, when examining the
RPD’s application of the test for state protection, the appropriate standard of
review is correctness. Justice Paul Crampton made a similar finding in Cosgun
v Canada (Minister of
Citizenship and Immigration) 2010 FC 400 at paragraph 30. The standard
of review on the first issue is correctness.
[20]
As
the Supreme Court held in Dunsmuir (above, at paragraph 50).
When applying the correctness
standard, a reviewing court will not show deference to the decision maker’s
reasoning process; it will rather undertake its own analysis of the
question. The analysis will bring the court to decide whether it agrees
with the determination of the decision maker; if not, the court will substitute
its own view and provide the correct answer. From the outset, the court must
ask whether the tribunal’s decision was correct.
[21]
With
respect to the second issue, this Court has consistently held that the analysis
of state protection is to be evaluated on the standard of reasonableness. See Cosgun,
above at paragraph 28, Saeed, above, at paragraph 35, and B.R. v Canada (Minister of
Citizenship and Immigration) 2006 FC 269 at paragraph 17.
[22]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
PRELIMINARY ISSUE
No
Personal Affidavit Filed
[23]
The
Respondent notes that the Applicants have not filed an affidavit on personal
knowledge alleging the errors they raise in the Decision. The Applicants have
instead filed an affidavit from Kathy VanderVennen, a legal assistant to their
counsel, which only introduces an excerpt from the IRB’s National Documentation
Package for the Czech Republic and a copy of the AI Report. The
Respondent says that there is no evidence on the record that Ms. VanderVennen
attended the Applicants’ hearing before the RPD. The lack of a personal
affidavit is a fatal flaw in the application for judicial review so the
application should be dismissed.
[24]
The
Applicants say that the lack of a personal affidavit is not necessarily fatal
to their application for judicial review. Ms. VanderVennen’s affidavit contains
only information which was in her personal knowledge. Further, Turcinovica v
Canada (Minister of
Citizenship and Immigration) 2002 FCT 164 allows a third party
affidavit to support an application for judicial review, so long as the errors
alleged in the application appear on the face of the record. The Applicants say
that the errors they allege – that the RPD applied the wrong test for state protection
and made an unreasonable finding on state protection – are apparent on the face
of the record. This application should not be dismissed even though there is no
personal affidavit alleging the errors they rely on.
ARGUMENTS
The
Applicants
[25]
The
Applicants say that the RPD erred in its examination of state protection when
it focussed on the efforts the Czech government is taking to combat
discrimination without assessing whether those efforts have translated into
actual protection for minorities on the ground. The Applicants also say that
the RPD unreasonably dismissed the AI Report, which was relevant to the state
protection analysis. They say that the RPD unreasonably dismissed the AI Report
because it did not contain comments from neo-Nazis involved in the demonstration
incident, or comments from the police. This unreasonable dismissal of the AI
Report renders the state protection conclusion unreasonable.
[26]
The
Applicants note that the RPD found that they had experienced discrimination
while they were in school. While the RPD found that their past experiences did
not amount to persecution, this finding was irrelevant as it did not go to the
forward-looking analysis of the possibility of future persecution.
The
RPD Applied the Wrong Test for State Protection
[27]
The
Applicants say that the RPD committed an error when it analyzed only the
efforts the Czech government is making to combat discrimination without
analyzing the practical effectiveness of those efforts in protecting Roma
people. They say that, when analyzing state protection, the RPD must examine both
whether a state is willing to provide protection against persecution and
whether the state’s efforts have actually materialized into adequate protection
for citizens. Since the RPD did not analyze the effectiveness of the Czech government’s
protection of Roma people in this case, the Decision should be returned for
redetermination.
[28]
For
this argument, the Applicants rely on Carillo, above, where the Federal
Court of Appeal held at paragraph 30 that
In my respectful view, it is not sufficient that the evidence
adduced be reliable. It must have probative value. For example, irrelevant
evidence may be reliable, but it would be without probative value. The evidence
must not only be reliable and probative, it must also have sufficient probative
value to meet the applicable standard of proof. The evidence will have
sufficient probative value if it convinces the trier of fact that the state
protection is inadequate. In other words, a claimant seeking to rebut the
presumption of state protection must adduce relevant, reliable and convincing
evidence which satisfies the trier of fact on a balance of probabilities that
the state protection is inadequate.
[29]
The
Applicants say that Canada (Attorney General) v
Ward,
[1993] 2 S.C.R. 689 holds that a state must be both willing and able to
provide protection to its citizens.
[30]
The
Applicants draw a distinction between a state’s efforts to protect its citizens
and the practical effectiveness of those efforts. They note that in Garcia v
Canada (Minister of
Citizenship and Immigration) 2007 FC 79, Justice Douglas Campbell held
that
[There] is a sharp difference between due diligence in developing
policy and giving education on a certain issue, and putting the policy or
education into actual operation. This point has particular importance to
protection against violence against women if the sentence under consideration
is extended to contexts other than terrorism.
[31]
The
Applicants also rely on Erdogu v Canada (Minister of Citizenship and
Immigration) 2008 FC 407 where Justice Leonard Mandamin followed Justice Frederick
Gibson’s decison in Elcock v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 1438. Justice Gibson wrote at paragraph
15 that
[The] ability of a state to protect must be seen to comprehend not
only the existence of an effective legislative and procedural framework but the
capacity and the will to effectively implement that framework.
[32]
The
Applicants say that the RPD in their case only looked at the Czech Government’s
efforts to combat discrimination but did not evaluate whether these efforts
actually protected Roma people from violence. They assert that the number of
neo-Nazi skinheads in the Czech Republic is increasing and that
the government’s actions must be examined to determine if they are actually
protecting the Roma from these skinheads.
[33]
The
Applicants point to the RPD statement at paragraph 22 of the decision that
[Recent] Federal Court decisions have
held that the test for a finding of state protection is whether the protection
is adequate, rather than the effectiveness per se. The protection need
not be perfect. One accepted measure of assessment is whether the state is
making “serious efforts” to protect its citizens. This standard continues to be
applied in many Federal Court decisions. [footnotes omitted]
This statement shows that the RPD applied
the wrong test for state protection. The serious efforts the RPD refers to only
show that the Czech government is willing to protect the Roma. The RPD failed
to examine whether the anti-discrimination legislation, creation of RPAs, and
creation of MLOs actually provide protection. The Applicants say that the RPD
did not meaningfully engage with the evidence going to the practical effectiveness
of these measures.
[34]
Contrary
to the RPD’s finding that the Applicants had not rebutted the presumption of
state protection, the evidence before the RPD clearly shows that the mechanisms
in place in the Czech Republic do not provide adequate protection for
the Roma. They point to the June 2009 Issue Paper: Czech Republic – Fact
Finding Mission Report on State Protection (2009 Issue Paper), which the RPD
relied on and shows that the Czech government has created RPAs and MLOs. The
2009 Issue Paper also shows that these measures are ineffective at protecting
the Roma and proves that the RPD did not analyze the effectiveness of the Czech
Government’s efforts to protect Roma people.
[35]
The
Applicants also argue that the RPD erroneously conflated “serious efforts” with
“adequate protection.” They point to the RPD’s statement at paragraph 27 of the
Decision that
the
preponderance of the documentary evidence indicates that the Czech Republic government is making very
serious efforts to provide protection to the Roma whether as victims of hate
crime, assist [sic] in obtaining health care or education, or inclusion into
Czech society
[36]
The
Applicants rely on Aguirre v Canada (Minister of
Citizenship and Immigration) 2010 FC 916 and the following words of
Justice de Montigny at paragraphs 19 and 20:
[…] I find two flaws in the Panel’s
reasoning. First, the Panel assumes that the state can provide protection
because “huge resources” have been dedicated to address gang violence, without
ever assessing whether these efforts have had any real impact on the ground.
Second, the Panel did not take into account and discuss the reasons given by
the Applicant for not approaching the police. I will deal with each of these
issues in turn.
The case
law is replete with statements confirming that it is not sufficient for a state
to make efforts to provide protection; an objective assessment must also
establish that the state is able to do so in practice: see, inter alia, Avila v. Canada (M.C.I.), 2006 FC 359; Sanchez
v. Canada (M.C.I.), 2009 FC 101; Capitaine v. Canada (M.C.I.),
2008 FC 98. However, the Panel does not seem to be alert to this distinction,
and does not refer to any documentary evidence showing that the resources
devoted to combating crime have produced any tangible results. There is only
one vague reference to the “National Documentation Package”, which is most
unhelpful considering the voluminous number of documents that it contains. Even
this one reference only supports the assertion that huge resources are
dedicated to dealing with gang violence. There is not a shred of analysis of
the numerous documents indicating that gang members are increasingly powerful
and roam freely throughout the country, that El
Salvador is one of the most violent countries
in the world, and that extortion rings plague businesses and more particularly
transportation and trucking companies. The Panel clearly had an obligation to
review, weigh and explain why it rejected this documentary evidence which was
not only relevant but which also contradicted its own findings: Cepeda Gutierrez v. Canada (M.C.I.)
(1998), 157 F.T.R. 35, at para. 17. It should not have simply glossed over this
dire information and contented itself with saying that El Salvador is a
functioning democracy that has put enormous resources towards its problems.
[37]
The
RPD discontinued its analysis after finding that the Czech Republic government
has made serious efforts to combat discrimination without analysing those
efforts for factual effectiveness. This error means the Applicants’ case must be
returned for reconsideration..
The
RPD Unreasonably Dismissed the AI Report
[38]
The
Applicants note that they placed the AI Report before the RPD. That report
details an incident in Novỳ Bydžov, a town in the Czech
Republic.
On 12 March 2011, approximately 500 far-right demonstrators were marching
through Novỳ Bydžov, when approximately 200 counter-demonstrators,
including some Roma people, attempted to block the far-right demonstrators’
route. The Czech police intervened to remove the counter-demonstrators’
blockade by charging them with horses and beating them with collapsible batons.
An hour after the demonstration was over, twenty of the far-right demonstrators
attacked three Roma people.
[39]
The
Applicants say that this report goes to the adequacy of state protection of
Roma people in the Czech Republic and that the RPD unreasonably dismissed
the report.
[40]
The
RPD found that the AI Report was one-sided because it only included comments
from Amnesty International observers who were present at the event and from
counter-demonstrators. Accordingly, the RPD accorded the report little weight
in its analysis of state protection. The Applicants say that it was
unreasonable for the RPD to reject the AI Report because it did not include
comments from the far-right demonstrators.
[41]
The
Applicants note that a Czech police official was actually quoted in the AI Report,
though the RPD said it did not contain comments from the police. They also say
that it is unimaginable what balance the comments of a far-right demonstrator could
have added to the report or the RPD’s assessment of state protection. The
Applicants say that the RPD’s giving little weight to the report glosses over
the fact that the Czech police used force to assist neo-Nazis.
[42]
The
Applicants equate the weight the RPD put on the AI Report with a finding that
it is acceptable for police in a democracy to use excessive force against
peaceful protestors to support a racist demonstration. The RPD found that the
police in this incident were enforcing the law by removing the counter-demonstrators
from the approved march route. The Applicants say that the police used excessive
force in the incident and that this was against the law. They also say that the
RPD rejected the report because it was based on accounts of Amnesty International
observers. It was unreasonable for the RPD to reject the report for this
reason; Amnesty International is a credible and reliable organization. Since
the RPD unreasonably rejected this evidence going to state protection, the
Decision must be returned for reconsideration.
The Respondent
[43]
The
Respondent argues that the RPD’s Decision should not be interfered with by this
Court. The RPD reasonably concluded that the Applicants had not suffered persecution
in the past and did not face a serious risk of persecution on return to the Czech Republic. The
Applicants also failed to adduce sufficient reliable and probative evidence to
rebut the presumption of state protection. The RPD appropriately weighed the
evidence before it and it is not for the Court to reweigh the evidence on
judicial review.
Discrimination or Persecution
[44]
The
Respondent notes that the RPD found that the Applicants had been discriminated
against, but did not find that they had been persecuted. He says this Court has
held that persecution is more than harassment and involves the affliction of
repeated acts of cruelty or a particular course or period of systemic
infliction of punishment.
[45]
The
RPD considered all the evidence and made a reasonable conclusion that the
Applicants did not face a serious possibility of persecution. The RPD found
that there was no persuasive evidence that the Applicants were persecuted in the
areas of education, housing, employment, or access to medical care. Relying on Sagharichi
v Canada (Minister of Employment and Immigration), [1993] FCJ No 796, the
Respondent says that the distinction between discrimination and persecution is
not always clear on the facts, but it is for the RPD to draw its own
conclusions on whether actions perpetrated against a claimant constitute
persecution. This Court should not disturb the RPD’s conclusions unless they
are unreasonable.
The RPD
Applied the Appropriate Test for State Protection
[46]
The
RPD did not apply an incorrect test for state protection; having articulated
the appropriate test as one of adequacy, the RPD relied upon an acceptable
measure of adequacy: whether the state is making serious efforts to protect its
citizens. The Respondent says that this Court approved this measure of adequacy
in Flores v Canada (Minister of Citizenship
and Immigration) 2008 FC 723 at paragraph 11, where Justice Richard Mosley
wrote that
The serious efforts to provide protection noted by the panel
member support the presumption set out in Ward.
Requiring effectiveness of other countries' authorities would be to ask of them
what our own country is not always able to provide.
The
Applicants have not Rebutted State Protection
[47]
The
Respondent says that, following Ward, above, Carillo, above, and Canada
(Minister of Employment and Immigration) v Villafranca, [1992] FCJ
No 1189 (FCA), there is a presumption of state protection which can only be
displaced by clear and convincing evidence that the state is unable to protect
a claimant. Though a state may not be able to perfectly protect its citizens at
all times, simply showing that this is the case is insufficient to displace the
presumption
[48]
In
this case, the Applicants did not provide evidence that was probative of the Czech
Republic’s
inability to protect them. The Applicants made lukewarm efforts to seek state
protection: when the Principal Applicant went to the police after he was
attacked in 1996, he did not take further steps to prosecute his complaint.
Further, the evidence before the RPD did not show a complete state breakdown or
rebut the presumption of adequate state protection. The RPD considered
documentary evidence of the Czech Republic’s efforts to combat
discrimination.
[49]
The
Respondent also says that the RPD did not dismiss the AI Report as the
Applicants have asserted. Rather, the RPD examined this report and assigned
what weight it thought was appropriate. The assigning of weight is the proper
role of the RPD and it is entitled to choose which documentary evidence it
prefers, so long as it explains its preference and addresses contradictory
documents. It was open to the RPD to assign little weight to the AI Report and
the Court should not interfere.
The Applicants’ Reply
[50]
The
Applicants say that the RPD’s finding that they did not have a well-founded
fear of persecution was based on its finding that there is adequate state
protection in the Czech Republic. If the Court concludes that the RPD was
incorrect in its analysis of state protection, this means their fear of
persecution under section 96 must be analyzed again. They also say that the RPD’s
erroneous analysis of state protection lead it to incompletely analyse section
97 in their case. This means that their case should be returned for
reconsideration.
[51]
The
Applicants agree with the Respondent that the jurisprudence of this Court
establishes the correct test for state protection. However, they say that the
correct test includes an analysis of both the state’s willingness and ability
to protect. It is an error to consider only willingness without analyzing the
effectiveness of that protection. Further, the Applicants say that serious
efforts, which the RPD found here, are not the test for state protection. The
application by the RPD of an incorrect test is an error of law that must result
in redetermination, regardless of whether or not they adduced sufficient
evidence to rebut the presumption of state protection.
[52]
The
Applicants say that it is absurd to expect that the far-right demonstrators
referred to in the AI Report could have in any way balanced that report by
providing their comments. The far-right demonstrators were a “known hostile
entity with views that are well-established as unacceptable.” All the evidence
on the record shows that the Czech police, during the incident the AI Report
refers to, were supporting the far-right demonstrators with force. This makes
the RPD’s decision to assign little weight to the report unreasonable.
ANALYSIS
[53]
There
really is not a great deal to say about this application, other than that the
Court accepts the grounds and reasons for reviewable error put forward by the
Applicants.
[54]
The
lack of a personal affidavit from the Applicants is not fatal in this case
because the application deals with errors that are apparent on the face of the
record. See Ge v Canada (Minister of
Citizenship and Immigration) 2007 FC 890.
[55]
The
RPD considers the physical attacks upon the Applicants in its discussion of
state protection and concludes that “there was no persuasive evidence of a
sustained or system violation of basic human rights of the claimant’s
demonstrative of a failure of state protection.” In reaching this conclusion,
the RPD reviews the documentary evidence on the Czech Republic, as
well as the experiences of the Applicants and other similarly situated
individuals.
[56]
As
regards the documentary evidence, the RPD looks at the various laws and
programs that have been put in place to help Roma people and other ethnic
minorities and concludes at paragraph 27 that
The preponderance of the documentary
evidence indicates that the Czech
Republic
government is making serious efforts to provide protection to Roma whether as
victims of hate crime, assist (sic) in obtaining healthcare or education
or inclusion into Czech society. As noted above, there is discrimination
against the Roma in various aspects of their lives. However, the Czech
government is making very serious efforts to overcome this discrimination.
[57]
The
reasoning appears to be that the acknowledged discrimination against Roma
people in the Czech
Republic
does not amount to persecution because the Czech government “is making very
serious efforts to overcome this discrimination.” The RPD, in fact, bases its
analysis upon its understanding that, “[o]ne accepted measure of assessment [of
state protection] is whether the state is making ‘serious efforts’ to protect
its citizens. The standard continues to be applied in many Federal Court
decisions.”
[58]
The
rationale is that, provided the Czech Republic is making “serious
efforts” to protect the Roma people, this in itself demonstrates adequate state
protection for the Roma.
[59]
This
being the case, the RPD does not examine the issue of whether, in light of its
serious efforts, the Czech government has in fact been able to provide a level
of protection that is adequate to the threats faced by the Applicants. There
was a significant amount of evidence before the RPD that the “serious efforts”
of the Czech government has not resulted in adequate protection for the Roma.
See, for example, the 2009 Issue Paper. The RPD was not obliged to accept the
evidence that adequate protection does not exist, but it was obliged to
consider it and weigh it as part of its assessment. The weighing process did
not occur because the RPD in this case took the legal position that “serious
efforts” are sufficient to establish “adequate” state protection. There was no
need to go further and examine evidence that went to the issue of whether the
“serious efforts” actually are providing adequate protection in practice. The
Czech authorities may be willing to provide adequate state protection, but this
does not mean that they can or have provided adequate state protection.
[60]
In
my view, then, the RPD has committed an error of law in its conclusion that
“serious efforts” equates to adequate state protection. This error renders its
conclusions on adequate state protection for the Applicants unreasonable.
[61]
It
is trite law since the Federal Court of Appeal’s decision in Carillo, above,
that the appropriate test for state protection is not effectiveness per se.
Rather, the test is whether there exists adequate state protection from the
alleged risks. State protection need not be perfect; it need only be adequate.
As was stated plainly by the Federal Court of Appeal in Carillo at
paragraph 30,
[…] a claimant seeking to rebut the presumption of state
protection must adduce relevant, reliable and convincing evidence which
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate.
[62]
It
is well established law that while state protection need not be perfect, states
must be both willing and able to protect their citizens (see Ward,
above, at paragraphs 55-57 and Villafranca, above, at paragraph 7).
[63]
According
to the jurisprudence of this Court, it is not enough that a government is
willing to provide protection and is making efforts to do so. In order for
state protection to be present, the efforts made must adequately protect
citizens in practice. For example, in Garcia v Canada (Minister of
Citizenship and Immigration) 2007 FC 79, Justice Campbell discusses the
difference between legislation on the books and legislation that is enforced:
[…] However, there is a sharp difference between due diligence in
developing policy and giving education on a certain issue, and putting the
policy or education into actual operation.
[64]
In
Alexander v Canada (Minister of
Citizenship and Immigration) 2009 FC 1305, Justice Sean Harrington said
that a state’s “good intentions are simply not enough.”
[65]
In
Erdogu, above, Justice Mandamin considered the decision of the Federal
Court of Appeal in Carillo, above, and came to the conclusion that Justice
Gibson’s statement in Elcock, above, remains good law:
The ability of a state to protect must be seen
to comprehend not only the existence of an effective legislative and procedural
framework but the capacity and the will to effectively implement that
framework.
[66]
Likewise
in Razo v Canada (Minister of Citizenship and Immigration) 2007 FC
1265, Justice Eleanor Dawson said that “it is insufficient for a state to
possess institutions designed to provide protection if those institutions do
not provide actual and adequate protection.”
[67]
Justice
Hughes confirmed this position in Wisdom- Hall v Canada (Minister of
Citizenship and Immigration) 2008 FC 685, at paragraph 8:
The Board member erred in concluding that the test to be applied was
one requiring only a view of the laws in place and the expectations that they
might be adequate rather than addressing the realities as to what was happening
here and now. In order for adequate state protection to exist, a government
must have both the will and the capacity to implement effectively its
legislation and programmes.
[68]
More
recently in E.B. v Canada (Minister of
Citizenship and Immigration) 2011 FC 111, Justice Anne MacTavish wrote
at paragraph 9 that
It is apparent from the decision that the Officer focused on the
efforts made by the government of Guyana to combat crime, and did not properly assess whether those
efforts have actually translated into adequate state protection: see Carillo v. Canada
(Minister of Citizenship and Immigration), 2008 FCA 94, [2008] FCAJ No. Q99.
[69]
The
Court has stated in several other cases that it is an error to find against a
claimant on the basis of government efforts to provide protection without
assessing whether these efforts will result in adequate protection.
[70]
The
error in the present case is pretty well the error identified by Justice André
F.J. Scott in J.B. v Canada (Minister of Citizenship and Immigration)
2011 FC 210 and I can do no better than quote Justice Scott’s assessment and
conclusions on the problem at paragraphs 46-49:
The Board focused the bulk of its state
protection analysis on considering the country conditions evidence set out in
the IRB issue paper entitled, “Czech Republic: Fact-finding Mission Report on
State Protection” (June 2009). As outlined above, the Board pointed to
legislative prohibitions on discrimination as well as measures implemented to
reform the country’s police force and increase access to protection for the
Romani population. The Board concluded that the, “preponderance of the
documentary evidence” indicated that the Czech government was making “very
serious efforts” to protect the Roma.
However, as this Court has pointed out on a
number of occasions, the mere willingness of a state to ensure the protection
of its citizens is not sufficient in itself to establish its ability.
Protection must have a certain degree of effectiveness: see Burgos v Canada (Minister
of Citizenship and Immigration), 2006 FC 1537, 160 ACWS (3d) 696; Soto v Canada (Minister
of Citizenship and Immigration), 2010 FC 1183 at para 32. As such, an
applicant can rebut the presumption of state protection by demonstrating either
that a state is unwilling, or that a state is unable to provide adequate
protection: see Cosgun v Canada (Minister of Citizenship and Immigration),
2010 FC 400 at para 52.
Completely absent from the Board’s discussion
was any recognition of the objective evidence pointing towards a potential
inadequacy in state protection. For instance, the 2009 Amnesty International
Report on Human Rights in the Czech Republic indicated:
The
government again failed to implement adequate anti-discrimination provisions.
The Roma continued to experience discrimination, particularly in accessing
education, housing and health, as well as threats of attacks by far-right
groups.
The US DOS report on the human rights practices
in the Czech Republic entitled, “Country Reports on Human Rights Practices for
2008” (February 25, 2009), indicated:
The laws
prohibit discrimination based on race, gender, disability, language, or social
status; however, significant societal discrimination against Roma and women
persisted.
The Board’s own Response to Information
Request, CZE102667.EX (December 12, 2007) stated:
However,
according to the ERRC, in 2006 there was “near total impunity for racial
discrimination against Roma” in the Czech Republic (1 Mar. 2007). The
International Helsinki Federation for Human Rights (IHF) states that in the
majority of cases involving neo-Nazis targeting minorities, including Roma, “authorities,
including the police, turned a blind eye” (IHF 2007). According to IPS, a
survey conducted in 2006 found that “courts rarely investigate cases of racial
discrimination” ( 6 Apr. 2007), although further details on this survey could
not be found among the sources consulted by the Research Directorate.
An earlier Response to Information Request,
CZE100727.E (January 26, 2006) provided:
However,
the International Helsinki Federation for Human Rights (IHF) remarked that
police “often failed to act adequately” in cases of violent attacks against
Roma in 2004 (IHF 27 June 2005) and, according to the United States (US)
Department of State, there remained some “judicial inconsistency in dealing
firmly with racially and ethnically motivated crimes” (Country Reports 2004 28
Feb. 2004, Sec. 5).
Even the document relied on by the Board, the
2009 issue paper, indicated:
Other NGO
interlocutors claimed that the police tended to address acts of extremism only
when they were considered serious or too high-profile to ignore...
In the present case, I find that it was
unreasonable for the Board to have focused on the “very serious efforts” being
employed by the Czech Republic to protect Romani citizens to the exclusion of
the evidence showing that, in practice, those efforts may have been inadequate.
The Board was not required to refer to every piece of evidence placed before
it. However, in view of the fact that reliable and relevant country conditions
evidence supporting the applicants' position had been presented, the Board had
an obligation to acknowledge that evidence and explain why it was satisfied
that, despite that evidence, the government's “very serious efforts” were
sufficient: see Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35, 83 ACWS (3d) 264 (TD).
[Emphasis in original]
[71]
In
conclusion, I find that the RPD committed a serious legal error in equating
“serious efforts” with “adequacy” and unreasonably failed to address the
evidence before it on the issue of whether, in practice, those efforts have
resulted in adequate protection for the Applicants.
[72]
The
RPD’s rejection of the AI Report is bizarre. The RPD, in effect, holds that the
report on the neo-Nazi demonstration is not “persuasive evidence that the
police failed to act appropriately in matters involving the claimants or in
matters involving similarly situated individuals.” As the report makes clear,
representatives of Amnesty International “were present at the scene of the
intervention.” Whether or not the neo-Nazi march was legal or proceeding along
an approved route, the observers saw the police allow a violent demonstration
take place, charge the counter-demonstrators with horses, and beat
counter-demonstrators with truncheons.
[73]
To
the RPD, direct observation by Amnesty International was not persuasive because
these observations were not tempered by the views of the Neo-Nazis or the
authorities who permitted them to march through a Roma area. This was
unreasonable. No matter what the neo-Nazis or authorities could have said, this
would not change the fact that the observers saw what they saw. This bore
directly on the adequacy of state protection and it was unreasonable for the
RPD to reject it.
[74]
Given
my comments above, I think it is clear that the Decision as a whole cannot
stand and must be returned for reconsideration.
[75]
Counsel
agree there is no question for certification and the court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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