Docket: IMM-6801-13
Citation: 2015 FC 474
Ottawa, Ontario, April 17, 2015
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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FRANTISEK BANDA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Defendant
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JUDGMENT AND REASONS
[1]
Mr. Banda challenges the decision made by the
Refugee Protection Division [the Board] determining that he is not a Convention
refugee nor a person in need of protection pursuant to sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27.
[2]
For the reasons that follow the application is
allowed.
Background
[3]
Mr. Banda is a citizen of the Slovak Republic
and is of Roma ethnicity. He arrived in Canada with his homosexual partner and
the Board jointly considered their claims. This application does not deal with
Mr. Dome’s refugee claim.
[4]
Mr. Banda alleges that he was discriminated
against and suffered from verbal harassment while in school because he is
Roma. He says that he reported this treatment to his teachers, but nothing was
done about it. In trade school, his life became more difficult because his
classmates knew that he was homosexual. In his Personal Information Form
[PIF], he stated that he was “often beaten up”
by his classmates and that he was not allowed to use the washroom. At the
Board hearing, he testified that he was beaten twice while in school and
provided further detail of these incidents. He explained to the Board that he
had been “nervous and embarrassed” to provide
more detail in the PIF and his testimony was elaborating on the summary
provided in it.
[5]
On July 3, 2010, Mr. Banda went to a dance club
where Roma were allowed entry. While walking home, he was chased and
physically attacked by a group of five or six skinheads. His attackers stopped
when another group of people walked down the street. He did not seek medical
attention because his injuries were not serious, but he did report the matter
to police and presented a police report to the Board.
[6]
In his PIF, he stated that he was “often beaten up in the street for no [reason],” and
that if he approached the police, all they would do in response is to make a
report.
[7]
Mr. Banda says that he was not allowed
entry to bars or restaurants, and if he was allowed entry, he was not served.
Further, he claims that it is “very difficult to be a
gypsy and gay” so he did not often go out in public with his partner
because they were “always attacked verbally and
physically.”
[8]
Fearing for their lives, Mr. Banda and his
partner fled to Canada from the Slovak Republic on March 15, 2011 and applied
for refugee protection the same day.
[9]
Credibility and state protection were the
determinative issues for the Board.
A.
Credibility
[10]
The Board stated that Mr. Banda has a “serious problem when it comes to telling the truth,”
noting the following:
•
He testified that he was assaulted once in July
2010 but had stated in the PIF that he was “often
beaten up in street for no reason;”
•
He “said that when he
was attacked on the street it was because he was Roma and when he was attacked
at his boarding school it was because of his sexual orientation;”
•
He only reported the incidents at school once
because nothing was done the first time;
•
He testified that he was beaten twice in school
when he had stated in the PIF that he was “often beaten
up by [his] classmates”; and
•
No details about the two assaults at school were
mentioned in his PIF.
[11]
The Board rejected the explanation that he
failed to mention the incidents at school in his PIF because he was “nervous and embarrassed” because Mr. Banda had
informed an immigration official that he was homosexual during an interview.
[12]
The Board held that there is difference between
the use of the word “often” in the PIF regarding
the alleged school beatings and his testimony that he was beaten twice. The
Board found that Mr. Banda was attempting to embellish his claim.
[13]
With respect to the July 2010 assault, the Board
noted that Mr. Banda could not identify or describe his attackers. The Board
reviewed jurisprudence of this court that states that random assaults and those
with unidentified assailants are difficult to effectively investigate and
protect against and therefore it is not reasonable for a claimant to expect the
police to seek out and arrest their persecutors in those circumstances. The
Board also noted that there was no persuasive evidence that the police took no
action after the report was made and that there were no medical reports,
despite the allegations that Mr. Banda and his partner had been physically
attacked.
B.
State Protection
[14]
The Board found that the Slovak Republic is a
functioning democracy, and thus held that Mr. Banda must exhaust all avenues of
protection that are reasonably available to him and noted that the burden to
prove otherwise is a heavy one.
[15]
The Board reviewed the objective documentary
evidence and made the following finding:
The preponderance of the objective evidence
regarding current country conditions suggests that, although not perfect, there
is adequate state protection in the Slovak Republic for victims of crime, that
the Slovak Republic is making serious efforts to address the problems of
criminality, and that the police are both willing and able to protect victims.
Police corruption and deficiencies although existing and noted by the Board,
are not systemic. In the panel’s view in canvassing the documentary evidence
that, as a whole, the issues of corruption and deficiencies are being addressed
by the Slovak Republic.
[16]
With regard to the alleged harassment due to
sexual orientation, the Board acknowledged that both Mr. Banda and his partner had
stated they avoided going out in public together to “avoid
homophobic retribution.” However, the Board contrasted this against his
testimony that he was physically assaulted twice at trade school due to his
homosexuality, but otherwise they were only verbally attacked. His statement
in his PIF was that they were “always attacked verbally
and physically.” The Board noted that the documentary evidence
suggested that “attitudes toward homosexuality are
negative and it is especially difficult for Roma who are gay,” but found
that the Mr. Banda and his partner had available avenues to address homophobia
because the state was taking steps to address these issues.
Issues
[17]
Mr. Banda raises two issues:
1.
Did the Board err in its credibility analysis?
2.
Did the Board err in its state protection
analysis?
Analysis
A. Credibility
[18]
Mr. Banda submits that the RPD found him not to
be credible "based purely on a microscopic
analysis rooted in petty semantics." Having reviewed the record in
its entirety, I agree. I note that most of the decision relates to the claim
of Mr. Banda's partner, and not to him, the events he recites, or his
testimony.
[19]
The Member observes that in his PIF, Mr.
Banda wrote that at trade school, he was "often
beaten up" by his classmates, whereas in his oral testimony he
stated that he had been physically assaulted twice at school, had reported it
once but nothing was done, and did not report the second physical assault
because nothing was done on the first occasion. The Member compares the words “often” and “twice” and
concludes that Mr. Banda "engaged in
embellishments to bolster his claim for refugee status."
[20]
There are two difficulties with that
conclusion. First, it is impossible to understand how reducing the number of
attacks in sworn testimony "bolsters"
a claim. It is not uncommon for a Member to find that a claimant has bolstered
his claim when he recounts additional episodes of persecution in oral testimony
from that provided in the written narrative. I am unaware of any example where
the reverse has been described as bolstering. Second, the Member ignores that
Mr. Banda, when asked by the Member whether he considered a verbal attack to be
the equivalent to being beaten up, responded that he did. Based on that understanding,
his evidence was that he was "beaten up"
often – two physical assaults and a number of verbal attacks. As such, there
was no bolstering.
[21]
The Member relies on the fact that the assaults
are nor described in detail in the PIF as a basis of impugning credibility;
however, the assaults are referenced and the court has on many occasions
indicated that the PIF is to be a summary of the evidence and it is thus not
serious if it is not provided in detail.
[22]
The Member also notes that there is a lack of
corroborative documentary evidence – only one document for each claimant. He
concludes saying "although the claimants said that
they were beaten up, not once did they have to seek medical attention even when
they were attacked by several skinheads at a time." I agree with
counsel that this amounts to a veiled finding that the attacks did not occur. At
a minimum it points to the Member being sceptical that they occurred. Yet, Mr.
Banda provided a police report for the July 3, 2010 assault by the skinheads
that compares most favourably with his evidence. The Member fails to address
it at all. It is impossible to reconcile this report with the scepticism of
the Member. He had to engage with that evidence and explain how he reached the
conclusions he did considering it.
[23]
In short, the basis on which the Member found it
necessary to opine that Mr. Banda has a "serious problem
when it comes to telling the truth" was insufficient to permit him
to reasonably reach that conclusion.
B. State Protection
[24]
The analysis the Member undertakes is deficient because
he looks to efforts and not results. Many times the Member speaks to the "serious efforts" being undertaken but fails
to address whether there actually is state protection available on the ground
for gay Roma. As the court has observed numerous time, that is an error: See Henguva
v Canada (Minister of Citizenship and Immigration), 2013 FC 912 and the
cases cited therein.
Conclusion
[25]
The decision is unreasonable and the claim of
Mr. Banda must be determined by a different Member.
[26]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application is allowed, the decision is quashed, the claim for refugee
protection is to be determined by a differently constituted Board, and no
question is certified.
“Russel W. Zinn”
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