Docket: IMM-5522-10
Citation: 2011 FC 1376
Toronto, Ontario, November 29, 2011
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
|
|
TEREZA VOZKOVA AND NICOLE
VOZKOVA, BY THEIR LITIGATION
GUARDIAN SUSAN WOOLNER
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review of the August
31, 2010 decision by the Immigration and Refugee Board’s Refugee Protection
Division (RPD) which found that the Applicants, Roma children from the Czech Republic aged three and five, were
not Convention refugees or persons in need of protection.
[2]
The Applicants are two Roma children, Tereza Vozkova, age
five, and Nicole Vozkova, age three, who are citizens of the Czech Republic. Their father was granted Convention refugee status on the basis of his
Roma ethnicity and having a well-founded fear of persecution in the Czech Republic. Their mother, Zdenka Vozkova, had made
a refugee claim in Canada but
withdrew the claim on September 21, 2004 to return to the Czech Republic. She is ineligible for refugee status
for having withdrawn her previous refugee claim.
[3]
The children had a designated representative for the RPD
hearing held on July 13, 2010. Their mother testified about one incident of
persecution where Tereza, an infant, was present.
[4]
The RPD found that the Applicants’ claim failed because no
subjective or objective fear of persecution had been established as there was
no evidence linking the persecution to their specific situations. Although the
Applicants’ counsel submitted documentary evidence regarding the treatment of
Roma persons in the Czech Republic, the
RPD found that documentary evidence on general country conditions was insufficient
in itself to ground a refugee claim.
[5]
I am granting judicial review because I find the RPD erred
in requiring the Applicants to show personalized risk in the s.96 analysis of
whether they would face persecution on return. I also find the RPD erred in
stating that the documentary evidence was not enough to ground a claim, absence
evidence linking it to the Applicants’ specific situation. My reasons follow.
Background
[6]
The Applicants, Tereza Vozkova, age five, and Nicole
Vozkova, age three, are citizens of the Czech Republic.
[7]
Their mother, Ms. Zdenka Vozkova, had made a refugee claim
in Canada but withdrew her claim on September 21, 2004 to return to the Czech Republic. There, the Applicants’ mother says she experienced discrimination and
persecution due to Roma ethnicity. She says she was assaulted by a man in
August 2005 while she was pushing Tereza’s stroller. She left the Czech Republic with Tereza for Ireland in March 2006 where Nicole was born in March 2007. Nicole is not
entitled to Irish citizenship due to Irish naturalization laws.
[8]
The Applicants arrived in Canada on May 1, 2008 with their parents. They have been included as dependents
on their father’s permanent residence application; however, this application
has not yet been processed. Their mother is ineligible to make a refugee claim,
as she had withdrawn her previous refugee claim. The Applicants’ refugee claim
was initiated on May 5, 2008, and their PIF was filed on May 30, 2008 with a
short narrative by their mother.
[9]
Ms. Susan Woolner was appointed as the designated
representative for the Applicants, as the parents were found to be not suitable
to act as designated representatives. The hearing was held on July 13, 2010.
At the hearing, the Applicants’ mother was called to testify as a witness to an
alleged incident of persecution concerning Tereza.
Decision
Under Review
[10]
The RPD found that the Applicants’ claims did not have a
credible basis.
[11]
The RPD accepted that the Applicants had a nexus to the
Convention as persons of Roma ethnicity, but decided the Applicants’ mother,
lacked a well-founded fear of persecution.
[12]
The RPD found that it was not credible that the Applicants’
mother had been assaulted in the Czech Republic or that anyone was looking for the Applicants to harm them. The RPD found
that the statements made by the mother were not credible due to a number of
issues:
·
The Applicants’ mother’s re-availment two times, in
returning to the Czech Republic
twice, allegedly to care for her own mother. The RPD found that this showed
that she did not possess a subjective or well-founded fear of persecution;
·
The Applicants’ mother testified that during the assault
she was slapped and pushed by the assailant. Later on, she testified that she
was punched. The RPD took this to be a significant inconsistency;
·
The Applicants’ mother testified that she was injured and
received a black eye after the incident, but did not mention any injuries in
her Personal Information Form (PIF);
·
The Applicants’ mother could not explain why the police officers
called for two more police officers when the man was not acting out at the
time. The RPD took this to find that the she was neither punched nor did she
receive any injuries during the incident;
·
The Applicants’ mother testified that she waited seven
months before leaving the Czech Republic due to her mother’s needs as well as arrange to meet with her
husband in Canada. The RPD pointed out that
the Applicants’ mother moved to Ireland instead of moving to Canada despite her husband having status in Canada. The RPD found that this delay undermined her allegation
that she faces harm in the Czech Republic.
[13]
The RPD found that the Applicants’ mother had not
established the Applicants’ claim, noting that no persuasive evidence was
placed before the RPD to support the allegation that the Applicant children
would face persecution upon being returned to the Czech Republic. The RPD observed that the only allegation of persecution
supporting Tereza’s claim was found to be implausible and embellished, and
Nicole had never been to the Czech Republic before.
[14]
The RPD acknowledged that the documentation established
that Roma persons do face discrimination and persecution, but documentary
evidence on general country conditions is insufficient to ground a claim if
there is no evidence linking it to the applicant’s specific situation.
[15]
As such, the RPD found that there was no evidence that
could be deemed credible and trustworthy other than that the Applicants are
citizens in the Czech Republic, and therefore no basis to the witness’s fear of
persecution.
[16]
The RPD rejected the Applicants’ claims on the grounds that
the Applicants were not Convention refugees, nor were they persons in need of
protection.
Legislation
[17]
The Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA) provides:
|
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…
|
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,
|
Issues
[18]
The Applicants raise several issues but two in my view are
determinative:
1. Did the RPD
misapply the test under s.96 in refusing to consider evidence of similarly
situated persons and in requiring an individualized set of facts to ground the
Applicants’ claim for refugee protection?
2. Did the RPD
unreasonably fail to apply the Guidelines on Child Refugee claimants?
Standard
of Review
[19]
The RPD’s findings of fact and conclusion on questions of
mixed fact and law are to be assessed on the standard of reasonableness: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190. The credibility findings of the RPD are entitled to a
high degree of deference: Aguebor v Canada (Minister of Employment and Immigration)
(1993), 160 NR 315 (FCA) at paras 3-4.
[20]
The standard of review for whether the RPD applied the
proper test for refugee protection under s.96 of IRPA is a question of
law and to be assessed on a standard of correctness: Pushpanathan v Canada
(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 43 Imm LR (2d)
117.
Analysis
[21]
The Applicants observe that although the RPD accepted the
Applicants as being of Roma ethnicity and it was established that Roma persons
face persecution in the Czech Republic, the RPD determined that documentary
evidence on “general country conditions is insufficient in itself to ground a
claim, absent any evidence linking it to the claimant’s specific situation”.
[22]
The Applicants submit that the RPD foreclosed the
possibility of finding that the Applicants were Convention refugees on the
basis of the documentary evidence of similarly situated persons being the
persecution faced by the Roma population, Roma children in particular, in the Czech Republic.
[23]
The Applicants submit that the necessity of establishing a
personalized risk applies to s.97 of IRPA, but not s.96. As a result,
the RPD erred because it did not determine whether the Applicants would face
persecution in the Czech Republic.
Instead, the RPD required the Applicants to demonstrate evidence of past
persecution and personalised risk, contrary to jurisprudence. A finding of
generality does not prohibit a finding of persecution under s.96.
[24]
The Respondent responded by pointing out that the central
finding of the RPD was that the Applicants had not established that they would
face persecution with sufficient credible evidence. The Respondent submits that
the RPD’s credibility findings were reasonable, as the RPD had found that the
determinative issue in the claim was credibility, and the only witness called
(the Applicants’ mother) was not credible with respect to central elements of
her testimony. The Respondent notes that the RPD supported this conclusion with
multiple details and specific credibility findings. Given that the Applicants
were too young to provide testimony, the credibility of this one witness was a
pivotal factor in their claim.
[25]
The Applicants in their reply point out that it is
precisely because the credibility finding was the only determination made in
the Applicants’ claim that the RPD made a reviewable error. The Applicants
emphasize that the Applicants’ mother was neither a party to the claim nor
their designated representative. Instead, she was merely a witness with respect
to one aspect of one of the Applicants’ claims.
Did the RPD misapply the test under s.96 in refusing to
consider evidence of similarly situated persons and in requiring an
individualized set of facts to ground the Applicants’ claim for refugee
protection?
Credibility
[26]
I agree the RPD failed to distinguish between a witness and
a claimant. The RPD’s analysis cannot end with the determination of the
credibility of the witness; instead, it must examine the balance of the
evidence before it. In addition, many of the events highlighted by the RPD as
being problematic in its credibility analysis were events that occurred before
either Applicant was born, and are irrelevant to their claim.
[27]
In particular, the RPD emphasized that the Applicants’
mother had re-availed herself twice in returning to the Czech Republic. Since she first returned to the Czech
Republic before either Applicant was born, this is irrelevant to
their claims.
Test
for s. 96 under IRPA
[28]
The Applicants observe that although the RPD accepted the
Applicants as being of Roma ethnicity and it was established that Roma persons
face persecution in the Czech Republic, the RPD determined that documentary
evidence on “general country conditions is insufficient in itself to ground a
claim [under s. 96 of IRPA], absent any evidence linking it to the
claimant’s specific situation.”
[29]
The Respondent suggests the RPD’s reference to the country
condition documents and personalized risk in paragraph 32 of the decision was
not made in relation to s.96, but as part of the s.97 analysis. However, the
section containing the RPD’s remarks about documentary evidence and
personalized risk was under the heading titled “Nexus, section 96, Immigration
and Refugee Protection Act”.
[30]
Professor James C. Hathaway wrote about the very situation
faced by these child Applicants in The Rights of Refugees under
International Law. He stated:
In sum, while modern
refugee law is concerned to recognize the protection needs of particular
claimants, the best evidence that an individual faces a serious chance of
persecution is usually the treatment afforded similarly situated persons in the
country of origin. In the context of claims derived from situations of
generalized oppression, therefore, the issue is not whether the claimant is
more at risk than anyone else in her country, but rather whether the broadly
based harassment or abuse is sufficiently serious to substantiate a claim to
refugee status. If persons like the applicant may face serious harm for
which the state is accountable, and if that risk is grounded in their civil or
political status, then she is properly considered to be a Convention refugee.
[Reference to Salibian v Canada (Minister of
Employment and Immigration), [1990] 3 FC 250 (CA) at paras 16-19].
(Emphasis added)
[31]
In Salibian, the Refugee Protection Division had
found that the applicant lacked a credible basis, and concluded that in order
to be eligible for refugee status he had to personally be a target of
reprehensible acts directed at him in particular. The Federal Court of Appeal
found it to be an error of law stating:
It can be said in
light of earlier decisions by this Court on claims to Convention refugee status
that
(1) the applicant
does not have to show that he had himself been persecuted in the past or would
himself be persecuted in the future;
(2) the applicant
can show that the fear he had resulted not from reprehensible acts committed or
likely to be committed directly against him but from reprehensible acts
committed or likely to be committed against members of a group to which he
belonged;
(3) a situation of
civil war in a given country is not an obstacle to a claim provided the fear
felt is not that felt indiscriminately by all citizens as a consequence of the
civil war, but that felt by the applicant himself, by a group with which he is
associated, or if necessary by all by all citizens on account of a risk of
persecution based on one of the reasons stated in the definition; and
(4) the fear felt
is that of a reasonable possibility that the applicant will be persecuted if he
returns to his country of origin (see Seifu v. Immigration Appeal Board,
(12 January 1983), Doc. No. A-277-82, cited in Adjei v. Canada (Minister
of Employment and Immigration), [1989] 2 F.C. 680, 7 Imm. L.R. (2d)
169, 57 D.L.R. (4th) 153 (C.A.) at 683; Darwich v. Minister of
Manpower and Immigration, [1979] 1 F.C. 365, 25 N.R. 462 (C.A.); Rajudeen
v. Minister of Employment and Immigration (1984), 55 N.R. 129 (C.A.), at 133
and 134).
(Emphasis added)
[32]
In Dezameau v Canada (Minister of Citizenship and
Immigration), 2010 FC 559, 89 Imm LR (3d) 169 [Dezameau], the
Haitian applicant and her two daughters alleged fear of persecution in part on
the basis of the fact that they would be targets of potential rapists as a
result of the fact that they are women. The RPD pointed out that the principal
applicant had never been a victim of an attack related to her status as a
woman. While the RPD noted the documentary evidence did refer to violence
against women being a problem in Haiti, the RPD found that the risk feared by the applicants was one rooted in a
general problem of criminality. Justice Pinard found that the RPD had accepted
the applicant as a member of a social group, but erred in using its finding of
widespread risk of violence to rebut the assertion of a nexus between the
applicants’ social group and the risk of rape; “A finding of generality does
not prohibit a finding of persecution on the basis of one of the Convention
grounds”: Dezameau at para 23.
[33]
More recently, in Josile v Canada (Minister of
Citizenship and Immigration), 2011 FC 39, 95 Imm LR (3d) 62 at paragraph
22, Justice Martineau found that a claim “cannot be rejected simply because the
group in question or its members face general oppression and the claimant’s
fear of persecution is not supported by an individualized set of facts. Where
the claimant has not, himself or herself, experienced the type of persecution,
he or she fears, the claimant can use evidence of similarly-situated persons to
demonstrate the risk…”.
[34]
I conclude the RPD committed a reviewable error when it
required the Applicants to demonstrate evidence of past persecution and
personalised risk contrary to the jurisprudence requiring consideration of
similarly situated persons as well.
Documentary
Evidence
[35]
The Applicants submit that the RPD ignored the documentary
evidence concerning the treatment of the Roma population in the Czech Republic which should have been considered, given that it was
central to whether the Applicant children would face persecution in the Czech Republic. The Applicants submit that the RPD was required
to consider the documentary evidence describing the treatment of Roma children
in the Czech Republic, even if the RPD disbelieved the Applicants’ mother’s
story and account of a past persecution.
[36]
In Canada (Minister of Citizenship and Immigration) v
Patel, 2008 FC 747, [2009] 2 FCR 196 [Patel] which involved a
thirteen-year-old-boy from India, the applicant (the Minister in this case) had
submitted that it was not open to the RPD to assume that the minor child had a
subjective fear of going back to India. Justice Lagace observed that certain
claimants deemed incompetent, either by age or disability, may not be able to
articulate their fear in a rational manner, and that the applicant’s position
would exclude all incompetent persons from being able to qualify as Convention
refugees. Instead, Justice Lagace found that “Where a claimant is not
competent, whether by age or disability, and the evidence establishes an
objective basis for his fear, it is sufficient that the designated
representative establish a subjective fear in his role as designated
representative (in loco parentis), or that the subjective fear be
inferred from the evidence:” Patel at para 33.
[37]
In Pacificador v Canada (Minister of Citizenship and
Immigration), 2003 FC 1462, 33 Imm LR (3d) 289 at paragraphs 76 and 77,
Madame Justice Heneghan found it to be an error when the RPD only considered
evidence of one person similarly situated to the applicant:
In my opinion, this
decision supports a finding that the Board erred in the manner in which it
concluded that the Applicant did not face a serious possibility of persecution
in the Philippines. The Board erred by limiting the comparison of the Applicant
to only one other similarly situated person, that is, his father. The fault was
not in looking for a comparator, as in Salibian, supra, but in defining
the comparator group too narrowly.
Rather, the Board
should have considered the objective basis of the Applicant's fear of
persecution relative to his membership in a group consisting of persons in the Philippines who are
prosecuted for political motives and whose prosecution appears to be tainted by
corruption.
(Emphasis added)
[38]
The RPD’s analysis focused on the mother’s conduct and
similarly erred in limiting the Applicant children’s comparator group too
narrowly.
The RPD failed to apply the Guidelines on Child Refugee
claimants, leading to a decision that is unreasonable.
Child
Guidelines
[39]
The Applicants refer to the IRB document titled “Guideline
3: Child Refugee Claimants, Procedural and Evidentiary Issues” [Child
Guidelines] which address the evidentiary issues of eliciting and assessing
evidence in the refugee claims of children. The Applicants point out that the
RPD did not consider the Child Guidelines which outlines the importance
of considering objective factors, such as documentary evidence on country
conditions, where a child is too young to give testimony as to their subjective
fear.
[40]
The Respondent submits that the RPD was clearly aware that
this was a case involving children, having made reference to their ages.
Furthermore, the Respondent submits that the Child Guidelines do not
mandate a particular outcome and instead are devoted to ensuring that
procedures used give priority to the best interests of the children.
[41]
The Child Guidelines provides:
A child claimant may
not be able to express a subjective fear of persecution in the same manner as
an adult claimant. Therefore, it may be necessary to put more weight on the
objective rather than the subjective elements of the claim. The Federal Court
of Canada (Appeal Division) has said the following on this issue:
I am loath to believe
that a refugee status claim could be dismissed solely on the ground that as the
claimant is a young child he or she was incapable of experiencing fear the
reasons for which clearly exist in objective terms.”
(Emphasis added)
[42]
Although the Respondent is correct in pointing out that the
Child Guidelines do not mandate a specific outcome, they provide a
reason why the RPD should consider the objective documentary evidence in
considering whether the Applicant children would face persecution as Roma
children if deported to the Czech Republic.
[43]
In Kim v Canada (Minister of Citizenship and Immigration),
2010 FC 149, [2011] 2 FCR 448 Justice Shore extensively discussed the Child
Guidelines and among other things observed:
[61] The Court is
in agreement with the Respondent that: “[t]he [CRC] does not change the
definition on the standard by which a child can be found to be a Convention
refugee”; however, the Court finds that the CRC and the Guidelines add nuances
to the determination of whether a child fits the definition of a refugee under
section 96. These nuances are based on an appreciation that children have
distinct rights, are in need of special protection, and can be persecuted in
ways that would not amount to persecution of an adult.
(Emphasis added)
[44]
In Dong v Canada (Minister of Citizenship and Immigration),
2008 FC 1151 Justice Campbell found it to be an error to not have regard to the Child Guidelines:
[6] It is
obvious that, in the rendering of the reasons quoted, the RPD gave absolutely
no weight to the fact that, at the time the events occurred, the Applicant was
mere youth, and at the time the Applicant testified, she was a young person. On
the face of the record, the depth and breath of the explanations the Applicant
gave should have given the RPD pause for making strong and unsubstantiated
negative credibility findings. While the RPD states in its decision that “I
have taken in into account the Chairperson’s Guidelines on Child Refugee
Claimants”, there is no evidence of any accommodation shown to this
youthful Applicant.
(Emphasis added)
[45]
The RPD had dismissed the testimony of the mother of the
Applicant children. The RPD observed that the only allegation supporting
Tereza’s claim was found to be implausible and embellished, and Nicole had
never been to the Czech Republic
before. The RPD found no persuasive evidence was placed before it to support
the allegation that the Applicant children would face persecution upon their
return to the Czech Republic.
[46]
The RPD acknowledged that the documentation established
that Roma persons do face discrimination and persecution but documentary
evidence on general country conditions is insufficient to ground a claim if
there is no evidence linking it to the applicant’s specific situation in its
s.96 analysis. Even if this were treated as applying to the s.97 analysis as
the Respondent submits, there is no indication that the RPD considered
documentary evidence as it related to treatment of Roma children in the Czech Republic.
[47]
The RPD has two child Applicants before it. It cannot
simply treat the children’s claims as if they were adults with a capacity to
endure a certain degree of prejudice and discrimination. It must assess the
documentary evidence relevant to the circumstances these two Roma children
would face if returned to the Czech Republic. How are Roma children
treated? How would such treatment impact on their development? What are their
educational prospects? Their prospects for a future livelihood? Most
importantly, how vulnerable are children to the discrimination and persecution
the RPD acknowledges Roma face?
[48]
The RPD does not say it assessed or considered any evidence
documentary concerning Roma children. Since it makes no mention of this
evidence, I infer it did not consider documentary evidence relevant to the
Applicant children’s refugee claim and as such committed a reviewable error: Cepeda-Gutierrez
v Canada (Minister of
Citizenship and Immigration), [1998] 157 FTR 35.
Conclusion
[49]
The application for judicial review is granted and the
matter is remitted back for reconsideration by a differently constituted panel.
[50]
The parties have not proposed and I do not certify any
question of general importance.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application for judicial review is granted and the
matter is remitted back for reconsideration by a differently constituted panel.
2.
No question of general importance is certified.
“Leonard
S. Mandamin”
Email this Content