Docket: IMM-1785-12
Citation:
2015 FC 513
Toronto, Ontario, April 21, 2015
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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Jiri HORNAK
DANA ZELENKOVA
DANIEL ZELENKA
ANTONIN HORNAK
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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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ORDER AND REASONS
[1]
With respect to the present Application, the
Applicants are a family composed of a father, (the claimant), mother (the female
claimant), and two children, who are Roma citizens of the Czech Republic and
who claim protection pursuant to s. 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27, on the basis of their ethnicity, and
protection pursuant to s. 97 on the basis of fear of racist attacks from ethnic
Czechs. In a decision dated February 1, 2012, the Refugee Protection Division
(RPD) rejected the Applicants’ claim.
[2]
For the reasons which follow, I find reviewable error
in the RPD’s evaluation of the Applicants’ claim of prospective risk should
they be required to return to the Czech Republic.
[3]
The decision under review is complex because it
addresses a number of legal and factual issues without a defined structure. For
clarity, the present reasons are delivered by applying structure.
[4]
In order to achieve success on a claim pursuant
to ss. 96 or 97 of the IRPA, there are two sequential decision-making
steps that must be concluded in an applicant’s favour on the evidence
presented. On each step, the applicant bears the evidentiary burden of proof.
[5]
First, on the basis of an applicant’s evidence, the
RPD must determine whether a prospective risk exists in the country of return
of more than a mere possibility of persecution on a Convention ground (IRPA,
s. 96), or on a balance of probabilities a personalized risk (IRPA, s.
97). If either risk is found, its precise characteristics must be clearly
identified because the issue then becomes whether adequate state protection
at the operational level for that risk will be available to the applicant upon
return (Hanko v Canada (Citizenship and Immigration), 2014 FC 474).
[6]
For convenience, the phrase “adequate state protection at the operational level”
is abbreviated in the present reasons as State Protection.
[7]
And second, with respect to the availability
of State Protection upon return, an applicant bears the evidentiary onus of
rebutting a presumption: absent a situation of complete breakdown of state
apparatus, the state is capable of protecting against a prospective risk. Rebutting
the presumption requires clear and convincing evidence of the state’s inability
to protect (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at
724-725).
I.
The First Step of the Analysis
[8]
Before the RPD was a volume of evidence of
prospective risk to Roma in the Czech Republic. The Applicants’ evidence
contained in their amended PIF was accepted as credible:
During school our older son was constantly
verbally attacked just because he is gypsy. That was a big issue for him; he
couldn't concentrate on school work, most of the time he spent alone during
recess and lunch hour. My spouse and I discussed this with school board many
times but no changes were made.
In June 2006 my spouse and I went outside
for a walk, from nowhere a couple of white Czech people came and physically hit
us. They cut my left hand and hurt my fingers on the right side. After that I
went to see a doctor care. The doctor looked at my hand and immediately put a cast
on.
In July 2007, Poluceli Czech Rep. Together
with my spouse, we looked at this car beside us, it was two white males, when
they saw us they speed up and went in front of us and made us stop, and the two
males came to us and started to hit us, without reason. We were in shock and
didn't have any idea with what just happened. My spouse and I just took off.
The next day my spouse had visitors at her work place and they told her that “If
she is going to mention what happened she will regret for the rest of her
life”. We didn't do anything about it because we got scared especially for our
children.
One time I went with for a beer to a pub, while
I was ordering my beer at the bar a white Czech guy just came and stabbed me in
my thigh and told me to get out of the bar because gypsies are not allowed
here. I was bleeding a lot, the bar man called the police and the ambulance, I
got eight stitches from the cut, it was a crazy experience of getting stab just
for going out for a beer.
When I was pregnant with my second son, I
was two months at the time this happened. I went to the doctors to check myself
because there was something wrong, I felt dizzy, had morning sickness. The only
information that he gave me was that I was fine and that it was a flu and gave
me pills to take for my sickness, it was only getting worse and I decided to
go, to another doctor immediately, after the check up the doctor told me I am
pregnant, I was in shock and I told him what had happened with the doctor I had
gone to before and the doctor told me that he was racist that's why he told me
I wasn't pregnant and gave me the pills to take.
In December 2004 my husband and I were in a
restaurant in the Czech republic. We verbally attacked in the sense that
gypsies are coming here with a white girl. After a while when I sat at the
table, my attacker came to me and started to push my husband and verbally
attack him further. When I stood up for my man, our attacker took a beer glass
and he hit me in the face. My face was cut up and when he saw a lot of blood he
ran from the restaurant. My husband took me to the hospital where they cared
for my injuries and we discovered that my eye was cut, and stitches were
necessary. I had to stay four days in the hospital. The hospital made a police
report and we made a statement for the police record. No further action was
taken on the part of the police.
In October 2005 I was attacked on the way
home from work by two men. First they pushed me and called me names. After one
of them hit me in the face and he gave me a cut lip and the second one stepped
on my hand, breaking some bones. I had to go to the hospital and had my hand in
a cast for months. I reported the incident to the police, but because I didn't
recall how the men looked, the police told me they could not help as the
attackers were unknown.
In June 2006 I was out with a friend when we
were attacked by men, one of whom pulled a knife and threatened to stab me. But
I moved so he just cut me in the forehead. My friend tried to stop him, but he
cut her hand and sprained her thumb in the struggle. We sought medical help and
her hand was bandaged in a soft cast. We informed the police about the attack.
A report was made and they told us if they find the attackers, they'd let us
know. We are still awaiting any help from police.
In July 2007 I went to drive to work with a
girlfriend and a car passed us, forcing us to stop. We got out of the car. One
of the men pushed me and verbally attacked me about being a gypsy. We got back
in the car and we took off. Later, one man sought out my friend at work, and
threatened that if we called the police, we'd be sorry about it. We were
fearful for our kids, so we didn't report it.
In September 2008 when my son started
school, he was bullied by other kids at school regarding his gypsy background.
We knew that kids are kids, but we also knew that those attacks really came
from their parents, because we are a mixed family.
In December 2008 my husband was attacked in
a restaurant He wanted to buy a beer but they told him they're not going to
serve a gypsy. After an argument, the attacker took out spray and sprayed in
his face. Afterward he pulled a knife and stabbed him in the leg. When he fell
on the ground the attacker cut him in the neck. Later, someone from the bar
pulled him off my husband. He was taken to the hospital where they cared for
him, and he was sent home. The hospital told him they would report the incident
to the police and that they' d contact us later.
The police made a report. They expect that
the police would make an arrest for attempted murder or at least an attack. Nothing
came from these police reports.
(Certified Tribunal Record, pp. 29-30,
42-43)
[9]
In addition, the following in-country evidence
was introduced into the record by the RPD:
I would be remiss if I did not acknowledge
and consider that there is information in the documentation to
indicate that there is widespread reporting of incidents of
intolerance, discrimination and persecution of Romani individuals in
the Czech Republic. However, weighted against this is persuasive
evidence that indicates that the Czech Republic candidly acknowledges
its past problems, and is making serious efforts to rectify the
treatment of minorities in that country, especially in the case of
the Roma. The Board recognizes that there are some inconsistencies
among several sources within the documentary evidence; however, the
preponderance of the objective evidence regarding current country
conditions suggests that, although not perfect, there is an adequate
state protection in the Czech Republic for Roma who are victims of
crime, police abuse, discrimination or persecution, that the Czech
Republic is making serious efforts to address these problems, and
that the police and government officials are both willing and able
to protect victims.
There is documentary evidence that indicates Roma are discriminated
against. The documents indicate that although violent attacks on foreigners
and the Roma minority had declined since the 1990s, remaining largely
out of the headlines, societal prejudice against the country's Romani
population occasionally manifested itself in violence.
There are legitimate concerns from some
groups that there is impunity for racially motivated attacks and, the
police responses are not sufficient; however, the preponderance of
evidence indicates that the state is taking action against extremists
and does not condone or assent to extremist actions.
(Decision, paras. 25, 26, and 31)
[10]
While the RPD was aware of the deplorable
in-county conditions for Roma in the Czech Republic, no discrete finding of prospective
risk is made in the decision rendered. As mentioned, in particular with respect
to s. 96, the RPD was first required to determine whether the evidence adduced
by the Applicants supports a finding that they face more than a mere
possibility of persecution on a Convention ground upon return to the Czech Republic,
and then to determine whether the Applicants have rebutted the presumption that
State Protection will be prospectively forthcoming for that identified risk.
In my opinion, the Applicants were entitled to an independent determination on
their evidence of objective fear, and the RPD’s failure to provide the determination
constitutes a reviewable error of fact.
[11]
It is very important that a s. 96 claim be
determined on the basis of a clear articulation and application of the test respecting
persecution. Given the following passages from the decision, in my opinion, the
RPD failed to meet this requirement:
I find that the claimant has not
satisfied the burden of establishing a serious possibility of
persecution for a Convention ground, or that he would personally
be subjected, on a balance of probabilities, to a danger of torture,
or a risk to life, or a risk of cruel and unusual treatment or
punishment upon return to his country. Therefore, I find that the
claimant is neither a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97(1) of the IRPA. As the claim
of his wife and his minor children rely entirely on the evidence
of the claimant, their claims must also fail.
[…]
There is no persuasive evidence before
me that the claimant would face persecution or, on a balance
of probabilities, face a risk to his life, or to cruel and unusual
treatment or punishment, or a danger of torture, if he returned to the
Czech Republic. For all these reasons, I find that that the
claimant is not a Convention refugee or a person in need of
protection, whether under section 96 or section 97 of the IRPA, as
state protection is available to him.
[Emphasis added] (Decision, paras. 13 and
41)
[12]
In the first quoted paragraph which appears at
the beginning of the decision, the RPD correctly states the test as being a “serious possibility of persecution,” which is simply
another way of expressing “more than a mere
possibility” (Adjei v Canada (MEI), [1989] 2 FC 680). However, in
the second quoted paragraph which appears at the closing of the decision, RPD
has applied a higher evidentiary standard. Given the conflict, I find it is
uncertain as to which test was actually applied to the evidence. In my opinion
the lack of transparency caused by the conflict constitutes a reviewable error
of law.
II.
The Second Step of the Analysis
[13]
In my opinion, the RPD fails in this step of the
analysis for two reasons.
[14]
First, on the RPD’s own motion, the Czech
Republic’s efforts to provide protection for Roma were advanced as proof of the
existence of State Protection. The efforts evidence reads as follows:
The documentary evidence indicates the police in the
Czech Republic respond to incidents where Roma have been attacked.
For instance, on December 10, 2010, a regional court sentenced a
youth to a three-year suspended sentence for attempted reckless
endangerment, and his mother to an 18-month suspended sentence for not
stopping her son from throwing a Molotov cocktail into a bedroom of
the Romani home where a 14-year-old girl was the target. In another
example, on October 20, 2010, a court found four men guilty of
attempted murder and property damage after they were convicted of
throwing Molotov cocktails into the home of a Romani family. The
judge found the crime to involve extraordinary circumstances that allowed
for more stringent sentencing, in the range of 20 to 22 years.
These are the longest sentences ever handed down for a racially motivated
crime. Relating to another incident, the Prime Minister and other
government officials released statements condemning a mayor's actions
who posted a statement on the city's official website declaring a
"war on gypsies." Police arrested a number of right wing
extremists during 2009, including 24 individuals, 18 of whom were
charged with supporting and promoting movement aimed at suppressing
the rights and freedoms of the individual. It was determined that a
member of the Czech military was responsible for training these individuals,
and he was subsequently discharged from the military without
severance pay or pension. In 2008, estimated 1000 police officers used
force to prevent an estimated 500 well-earned, right wing rioters
from attacking Roma. The only people charged in this incident, were
two Roma, who were sentenced to community service for physically and verbally
assaulting members of the Workers Party. However, as a direct result
of this incident, the government increased police presence in Romani
neighborhoods. There are numerous other examples in the documentary
evidence to demonstrate the Czech Republic's willingness and ability
to protect its Romani citizens. (Exhibit R/A-1, 2.1, Country Reports on
Human Rights Practices for 2010)
(Decision, para. 28)
[15]
It is clear that the efforts are being made with
respect to current systemic persecution of Roma of an extraordinarily serious
nature. However, I find it is not possible to reasonably name the efforts as
any form of state protection because the RPD failed to assess whether those
efforts have resulted in State Protection for the Applicants in the present
case. The fundamental error in the RPD’s state protection analysis is that no
attempt is made to define the content of State Protection against which the evidence
of in-country conditions, including the evidence of the Applicants’
experiences, can be applied and compared to conclude whether State Protection,
in fact, exists (see: Varga v Citizenship and Immigration, 2014 FC 1030
at paragraphs 4 to 6).
[16]
And second, in addition to offering the state’s efforts
at providing protection as evidence of the existence of State Protection, the
RPD places emphasis on the fact that the claimants made complaints to the
police about the persecutory conduct they suffered, and the police accepted the
reports and stated that an investigation would be conducted. Police willingness
to receive a complaint, in and of itself, cannot constitute a finding of State
Protection; it is merely a preliminary obligation within a policing regime. The
concrete action taken by the regime after becoming aware of misconduct is the
protection that citizens have a right to expect from the state.
III.
Conclusion
[17]
For the reasons provided, I find that the
decision under review is unreasonable.
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