Docket: IMM-943-14
Citation:
2015 FC 537
Ottawa, Ontario, April 28, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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OTTO BALAZ
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
Otto Balaz (the Applicant) has brought an
application for judicial review under s 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c.27 (the IRPA) of a decision of the Refugee
Protection Division the Immigration Refugee Board (the Board). The Board
determined that the Applicant is neither a Convention refugee within the
meaning of s 96 of the IRPA, nor a person in need of protection as defined in s
97(1) of the IRPA.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
II.
Background
[3]
The Applicant is 63 years old and a citizen of Slovakia. He arrived in Canada on May 19, 2012 together with four distant family members.
Their claims for refugee protection were initially joined, but the Applicant’s
claim was later severed from the others. The Applicant says that he faces
persecution in Slovakia because of his Roma ethnicity.
[4]
Questions arose regarding the documents the
Applicant completed at the port of entry (POE), particularly in relation to the
amended Personal Information Form submitted by his counsel after his claim was
severed. The Applicant said that because he was travelling with the other
claimants, the mother assumed responsibility for telling their story and it did
not occur to him to supplement it with details of his own circumstances. It was
only after his claim was separated that he realized the need to provide details
of the persecution he faced personally. Thus, the initial narrative provided on
behalf of the Applicant referred only generally to discrimination that the
Applicant faced when applying for jobs, and one incident in which he was not
paid for a job. In the latter incident, the Applicant and two co-workers were
beaten when they asked to be paid. Following this, the police took the victims
to the hospital, and told them that the police would be of no further help.
[5]
In his amended narrative, the Applicant spoke
broadly of ongoing persecution of Roma in Slovakia since 1985, and in more detail
about his personal experience during the two years preceding his claim. The
incident of being beaten by an employer’s “thugs”
was repeated but with more detail. Four additional incidents of beatings were recounted,
one in which the Applicant was kidnapped and held for two days. He said that “white people” were extorting him under threat of
death. The Applicant went to the police on three occasions but they refused to
investigate. He was taken to the hospital twice, and was denied treatment on
one of these occasions.
[6]
The Board expressed concern regarding the
Applicant’s narrative because it was in English, with no certificate of
translation, and it was not signed by the Applicant. The Applicant’s counsel explained
that the narrative was recorded with the assistance of an interpreter, and the Applicant
confirmed under oath that it was true, accurate, and complete.
[7]
In his testimony
before the Board, the Applicant said that he
sought help from the police after he was kidnapped, but he did not include this
detail in the amended narrative because he considered it repetitive. The
Applicant added that his house was illegally expropriated by the group that
extorted him. There were also further inconsistencies between the amended
narrative and the Applicant’s testimony before the Board, primarily with
respect to the dates on which the incidents occurred.
[8]
In its decision dated November 28, 2013, the Board
found that the Applicant was neither a refugee nor a person in need of
protection. The Board accepted that the Applicant had been beaten. However, due
to the many inconsistencies between the POE documents, his amended narrative and
his oral testimony, as well as the lack of corroborating evidence, the Board
made an adverse finding of credibility and found that the beatings did not
amount to persecution. Based on its analysis of country condition reports, the Board
also found that Roma do face discrimination in Slovakia, but the presumption of
state protection was not rebutted in this case.
III.
Issues
[9]
The following issues are raised by this
application for judicial review:
A. Whether the Board’s findings with respect to the Applicant’s
credibility were reasonable;
B. Whether the Board’s finding regarding the Applicant’s lack of persecution
was reasonable; and
C. Whether the Board’s finding of adequate state protection was
reasonable.
IV.
Analysis
[10]
All three issues raised in this case are subject
to review by this Court against a standard of reasonableness (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
A.
The Applicant’s Credibility
[11]
The Applicant focuses his criticism on paragraphs
24 and 25 of the Board’s decision, which address an inconsistency between his
amended narrative and his oral testimony. The amended narrative states that the
police would not help the Applicant and his co-workers, while the Applicant
testified at the hearing that the police also told them that they got what they
deserved because of their ethnicity.
[12]
This is admittedly a small inconsistency, and
were it the only reason for the Board’s adverse credibility finding then the
decision may have been unreasonable. However, a review of the Board’s lengthy
and detailed analysis of the Applicant’s credibility confirms that this was
only one of many inconsistencies. The Board concluded its analysis with the
following observation (at para 34):
I am aware that none of the concerns raised
here may be sufficient, each on its own, to negate the claims. However the
cumulative effect of all of them is that I do not have sufficient credible,
plausible and trustworthy evidence upon which to base a determination that the
claimant is a Convention refugee.
[13]
In my view it was reasonable for the Board to
find that the cumulative effect of many small inconsistencies undermined the
Applicant’s credibility (Cuentas Peralta v Canada (MCI), 2014 FC 962,
245 ACWS (3rd) 410; Karakaya v Canada (MCI), 2014 FC 777, 242
ACWS (3rd) 908; Shah v Canada (MCI), 2013 FC 280, 227
ACRS (3rd) 525). Read as a whole, the Board’s decision on this point
is credible, transparent, and defensible with respect to the facts and law.
B.
Persecution
[14]
The Board concluded that, although the Applicant
faced discrimination in Slovakia, this did not reach the threshold of
persecution. The Board also found that some of the incidents described in the
amended narrative had been embellished.
[15]
Based on its negative assessment of the
Applicant’s credibility, the Board concluded that his experiences of
discrimination “do not individually or cumulatively,
rise to a level of seriousness of harm amounting to persecution”. This
finding of fact that was open to the Board based on the evidence, and there is
therefore no basis on which this Court may legitimately intervene.
C.
State Protection:
[16]
In Kina v Canada (MCI), 2014 FC 284, 239
ACWS (3d) 172 at page 24, Justice Russell held that the application of the
proper test for adequate state protection is subject to review against the
standard of correctness. However, the application of the test to the facts is
subject to review against the standard of reasonableness. Here, it is alleged
the Board’s finding was unsupported by the evidence. This falls into the latter
category, and attracts a standard of reasonableness.
[17]
The Applicant relies upon Cervenakova v
Canada (MCI), 2012 FC 525, 217 A.C.W.S. (3d) 947 for the proposition
that, even if the Board provides a detailed analysis of state protection, this may
be undermined by a focus on efforts to improve state protection rather than the
results achieved. He also cites my recent decision in Juhasz v. Canada
(Citizenship and Immigration), 2015 FC 300, 2015.
[18]
In this case, the Board reasonably found that the
Applicant did not consistently avail himself of state protection. Based on its
credibility analysis, together with the Applicant’s admission that he did not always
report incidents, the Board concluded that the Applicant was refused help by
the police on only one occasion: the incident reported in the initial POE
documents. Although the police declined to investigate this incident, they nevertheless
provided assistance by transporting the three Roma victims to hospital. In Vagner
v Canada (MCI), 2014 FC 224, 239 A.C.W.S. (3d) 175, Justice Manson observed
that Cervenakova is less concerned with an applicant’s efforts to seek
protection than with the overt refusal of the police to help.
[19]
As Chief Justice Crampton wrote in Ruszo v
Canada (MCI), 2013 FC 1004, 2013 CF 1004, [2013] FCJ No 1099:
Nevertheless, the RPD’s misunderstanding or
misapplication of the “adequate state protection” test is not necessarily fatal
in cases where, as here, the RPD also reasonably concluded on other grounds
that the Applicants had failed to rebut the presumption of adequate state
protection with “clear and convincing evidence of the state's inability to
protect [them].” In this case, those grounds were the failure of the Applicants
to demonstrate that they had taken all objectively reasonable steps to avail
themselves of state protection, and to provide compelling or persuasive
evidence to explain their failure to do more than make a single attempt to seek
protection from the police. As discussed below, it is clear from various parts
of the decision that these were very important considerations for the RPD, and,
indeed, provided an alternate basis for the RPD's decision. Having regard to
the RPD’s determinations on these points, its decision was not unreasonable.
[20]
Furthermore, as Justice Mosley held in Minyuova
v Canada (MCI), 2013 FC 314, 226 A.C.W.S. (3d) 1137 at pages 6 and 7:
Each case must be determined on its own
facts as established by the evidence. This is not a case such as Cervenakova
v. Canada (Minister of Citizenship & Immigration), 2012 FC 525 (F.C.)
where the Board had failed to properly weigh the documentary evidence, its
analysis was vague and there was an insufficient basis for the adequacy
conclusion.
[21]
Here the Board conducted a forward-looking
analysis of the Applicant’s risk of persecution, and properly considered the
mixed evidence contained in the country condition reports. The Board
acknowledged the shortcomings in the protection available to Roma in Slovakia, but nevertheless concluded that the Applicant had failed to rebut the presumption
of state protection.
[22]
In my view this conclusion was open to the Board
based on the evidence provided. It is trite law that the Board is not required
to refer to every piece of evidence that supports its decision. There is no
indication that the Board ignored evidence that contradicted its findings, and its
analysis was thorough and well-reasoned.
[23]
I therefore find that the Board’s state
protection analysis was reasonable.
V.
Conclusion
[24]
The application for judicial review is
dismissed. Neither party proposed a certified question for appeal, and none
arises in this case.
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