Date: 20130225
Docket: IMM-5184-12
Citation: 2013 FC 186
Ottawa, Ontario, February 25, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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JAROMIR SARISSKY
VIOLA
SARISSKA
PATRIK
SARISSKY
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Applicants
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and
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THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The Applicants – a husband, wife and their son – are
citizens of the Czech Republic. They claim refugee protection in Canada based on their fear of persecution as Roma in the Czech Republic. In a decision dated May 2,
2012, a panel of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), determined that the Applicants were not Convention refugees,
pursuant to s. 96 of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA), or persons in need of protection, pursuant to s. 97
of IRPA. While the Board found the Applicants to be credible, the Board concluded
that the Applicants had not rebutted the presumption of state protection in the
Czech Republic.
[2]
The Applicants seek to overturn the decision, submitting
that the Board erred in this finding by carrying out a selective analysis of
the evidence and ignoring the inadequacy of the police response to incidents
where the Applicants were victims of racial violence.
[3]
In this case, the Board’s decision on state protection is
reviewable on a standard of reasonableness (see, for example, Ferko v Canada (Minister of Citizenship and Immigration), 2012 FC 1284 at paras 22, 24, [2012]
FCJ No 1377 [Ferko]). When reviewing a decision on a reasonableness
standard, the court must determine whether “the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR
190 [Dunsmuir]).
[4]
The notion of state protection is fundamental to a claim
for refugee protection and has been dealt with at length in the jurisprudence.
For purposes of this particular application for judicial review, I wish to
highlight certain principles which can be extracted from the jurisprudence
presented to me by both parties to this application.
•
The Board is presumed to have considered the totality of
the evidence, and is not required to refer to every piece of evidence in its
decision (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35 at paras 14-17, [1998] FCJ No 1425 [Cepeda-Gutierrez]).
•
It is a reviewable error for the Board to engage in
selective analysis of documentary evidence, accepting evidence that supports
its conclusions but ignoring contradictory evidence without explanation (see,
for example, Manoharan v Canada (Minister of Citizenship and Immigration),
[1996] FCJ No 356 at para 6 (TD) (QL)). The relevance of the contradictory
evidence to the facts in dispute must be taken into account; the more relevant
the evidence, the more likely that failure to mention it will render the
decision unreasonable (Cepeda-Gutierrez, above at paras 14-17). The
Board may demonstrate that it considered a particular document by addressing
the substantive point for which the contradictory evidence was put forward,
rather than making explicit reference to the document itself.
•
Adequate state protection does not mean “perfect
protection” but must involve more than making “serious efforts” (see, for
example, Ferko, above at paras 44, 52-56).
•
In assessing the adequacy of state protection, the Board
errs by ignoring or misapprehending the individual circumstances of the
applicant (see, for example, Ferko, above at para 62).
[5]
It is also important to note that the Board does not err by
failing to respond to arguments that were not made by claimants at the hearing
of their refugee claims. On applications for judicial review, counsel for
applicants, in their diligence and in hindsight, often make arguments to the
Court that could have and should have been made to the Board. Just as
applicants must not augment the record with documents that were not before the
Board, they should not be permitted to add to or change the arguments and
submissions that were made to the Board.
[6]
In this case, the Applicants refer specifically to two
documents that they allege were not adequately considered by the Board. The
first is an Amnesty International Report describing the failure of the police
to protect Roma during a demonstration by the Workers’ Social Justice Party.
The Report also explains that police committed violence against
counter-demonstrators. The second document is a European Roma Rights Centre
(ERRC) Report addressing the sufficiency of state response against anti-Roma
violence. The ERRC explained that “some progress in addressing racially
motivated violence” was reported by the State, but these statistics only
related to identified and prosecuted perpetrators and sentences given were
relatively light. State authorities are also not aware of available
methodological guidance relating to hate crimes.
[7]
The Board specifically mentions three documents presented
by the Applicants, two of which are the Amnesty International Report and the
ERRC Report noted above, and then acknowledges the following:
Counsel provides numerous… examples to demonstrate that
racism, discrimination and in some cases, persecution exists in the Czech Republic against Roma. That these occur is not a matter of dispute. The question that
must be determined is whether or not the Czech Republic offers adequate state
protection to these claimants in particular.
[8]
In addition to identifying the reports themselves, the
Board acknowledges their substance. The Board recognizes that there are
problems for Roma generally in the Czech Republic, stating that “Roma are
discriminated against” and that “societal prejudice against the country’s
Romani population occasionally manifested itself in violence”. The Board explains
that there are some inconsistencies in the documentary record, and some
documents may suggest that police protection is not available or not sufficient
for all Roma. This addresses the substantive point for which the Applicants
cite these reports.
[9]
I accept that adequate state protection means more than
making “serious efforts” (see, for example, Ferko, above). A review of
the documents before the Board shows that the police have been responsive in
many of the individual cases described. It appears that the police are
effectively following up and pressing charges in many cases. This certainly is
evidence of more than merely “serious efforts”.
[10]
Moreover, the Board did not ignore the personal
circumstances of the Applicants. The Board considered each of the two incidents
of violence against the Applicants. On one occasion, when the Male Applicant
was attacked in a butcher shop, the police arrived and took away the two
individuals responsible, presumably to the police station. When the Applicants’
apartment was set on fire, the fire department arrived promptly and interviewed
the Male Applicant and the neighbours. Even though the police investigation of
the apartment fire appears to have been minimal, the fact that the police
immediately responded and attempted some type of investigation supports a
conclusion that the response was adequate, albeit not perfect.
[11]
Briefly stated, the Board took into account the reality
that state protection is not always available for Roma and weighed this against
other evidence suggesting that: (a) these particular Applicants have
successfully been able to access adequate (albeit not perfect) protection; and
(b) in general, state protection goes beyond making “serious efforts” for Roma
citizens of the Czech Republic.
[12]
On the record before me, the decision of the Board is
clearly within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir, above at at para 47). In conclusion, I can find no grounds upon which this Court should
intervene in the Board’s decision.
[13]
Neither party proposes a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith
A. Snider”
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