Docket:
IMM-9539-12
Citation: 2013 FC 1149
Ottawa, Ontario, November
14, 2013
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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MARIA CZESAK
(a.k.a. MARIA CZESLAWA CZESAK)
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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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REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of an August 24, 2012 decision by the Immigration and
Refugee Board that the applicant was neither a Convention refugee, nor a person
in need of protection, pursuant to sections 96 and 97 of the IRPA.
[2]
For the reasons which follow, the application is
dismissed.
Factual
background
[3]
The applicant was born in Poland in 1958. The applicant married in 1979 and had three children from this marriage.
It ended in 1988, at which point the applicant formed a new relationship with a
common law partner Tadeusz Poniewierski, with whom she had three additional
children. The relationship with Mr. Poniewierski was abusive. However the
applicant remained with him until 2006, notwithstanding physical injuries
including a broken nose, broken arms and legs and problems with one of her
ears.
[4]
The applicant called the police many times but
they just told her to resolve her own marital problems. Her second partner
shared a pigeon-breeding hobby with the chief of the village police force and
drank with other police officers. He was once arrested after assaulting her,
but was released on probation. She finally broke up with him, but he did not
move away. He continued to come by her house frequently to harass her.
[5]
Ms. Czesak visited Canada from September 2005 to
March 2006. When she returned to Poland, her ex-partner met her at the Warsaw airport, forced his way into the car and came back to her house with her. There,
he broke the door and windows, punched her son, and pushed her down the stairs,
knocking her out.
[6]
She flew to Canada in July 2006 on another
visitor’s six-month visa and never left. She was initially granted a six-month
visa extension, but she says that her family discouraged her from applying for
a further extension and told her to just stay on illegally. They did not meet the financial criteria to sponsor her.
[7]
The applicant did not discover that it was
possible to apply for asylum until she was stopped by the police, apparently
for jaywalking, and sent to immigration detention. Her family did not pay
bail, despite promising to do so. She remained in detention for three months
until the Toronto Bail Program assisted her. While she was there the Refugee
Law Office provided her advice and she submitted an application for refugee
status on October 7, 2009.
[8]
She has not seen her ex-partner since 2006 but
was advised that he called her mother in Canada in May or June 2009 looking for
her. He continues to visit her house in Poland and threaten her relatives
there. She collected some documentation of the
problems, but her ex-partner stole those papers from her house. She asked her
children still in Poland and her youngest child’s guardian to obtain records
but they could not. She provided evidence of a Family Court decision from 2009
terminating her and Mr. Poniewierski’s parental rights over their children. Her
counsel sent at least four requests to Poland, in English and translated into
Polish, with signed consent forms, which did not result in further
documentation being provided.
[9]
Ms Czesak now lives in difficult circumstances
in Toronto and has been assessed by a social worker with the Barbara Schlifer
Clinic as withdrawn and possibly traumatized. Doctors’ assessments note that
she suffers from back pain, post-traumatic headaches, memory loss, blackouts,
depression and probably alcohol dependency.
Contested
decision
[10]
At the hearing, the panel member accepted that
Ms. Czesak had been “abused over a lengthy period of her second marriage” and
noted that she had taken into account the Women Refugee Claimants Fearing
Gender-Related Persecution guidelines issued by the Chairperson [the
“Gender Guidelines”] and the medical reports in making allowances for memory
lapses and lack of focus. The determinative issues were delay in claiming,
state protection, and internal flight alternative (IFA).
[11]
The panel member found that the delay in
claiming asylum was inconsistent with a person living in fear of persecution to
fail to seek asylum as soon as possible. The claimant’s family may have
provided her with poor, and moreover unscrupulous, advice, but she was aware of
her illegal status and took no steps to regularize it. The panel drew an
adverse inference and found that her credibility was undermined. However, I do
not find that the rejection of refugee status is based on delay or the
applicant’s general credibility.
[12]
The panel member reviewed the law and the
applicant’s evidence on state protection. It found that there was insufficient
clear and convincing evidence to rebut the presumption that Poland was incapable of protecting its citizens. The panel carried out an extensive review
of the evidence on lack of state protection, noting that Poland was making serious efforts to protect women, particularly since joining the European
Union, and that there was clear and convincing evidence that these efforts were
adequate. Poland had adopted an Act on Counteracting Violence in the Family on
November 5, 2005. Prosecutions were being brought against persons convicted of
domestic violence who could be sentenced to a maximum five years in prison,
although sentences tended to be more lenient. The number of victims’ claims was
increasing every year. For the latest statistics in 2007, it was reported that
police conducted 81,403 interventions related to domestic violence. Of that
number the justice ministry stated that 15,404 were convicted and that at
year’s end 4,500 individuals were serving jail sentences for domestic violence
crimes, demonstrating that the country acts to combat crime.
[13]
Police misconduct was a problem, but was also
being addressed. The panel referred to documentary evidence acknowledging that
the police could be reluctant to intervene in domestic disputes and that
protection for women in abusive situations was sometimes insufficient.
However, Poland was making efforts to improve police responsiveness, and
although counsel had submitted material from Amnesty International, Freedom
House, the European Police Action Centre on Violence Against Women, and the UN
Committee on the Elimination of Discrimination Against Women, this
documentation was five to seven years old. The panel found that the claimant
had provided no persuasive evidence that her ex-partner had connections with
the police which could prevent her from accessing state protection.
[14]
The panel did not accept the applicant’s
explanation of why she had delayed requesting police documents until just prior
to the hearing, or her explanation that some reports could not be provided
because officers were changing jobs, or her claim that Mr. Poniewierski had
stolen documents from her house when he realized she wanted to remain in Canada. The panel similarly found unreasonable her waiting until two weeks prior to the
hearing to obtain medical documents, when she had filed her claim for asylum in
2009.
[15]
The panel next considered the city of Warsaw, 300-400 kilometres from Ms. Czesak’s former place of residence in Poland, as an Internal Flight Alternative (IFA). The panel again reviewed the extensive
jurisprudence governing IFAs, including the insufficiency of arguments that
claimants had no friends or family in the region, or could not find suitable
work there, or might be better off in Canada economically, physically, or
emotionally than they would be in their own country. The claimant testified
that her persecutor had family in Warsaw and knew the city well, as he used to
work there. However, there was no evidence of a special relationship between
Tadeusz and the police in Warsaw that would suggest she would not be accorded
police protection if this was requested from Warsaw authorities. The panel concluded
that the claimant had not proven that she was at risk to life or of cruel and
unusual treatment due to inadequate state protection in the potential IFA area.
Accordingly, the panel found that under the circumstances it would not be
objectively unreasonable for her to relocate to Warsaw.
[16]
The panel member then examined a “compelling
reasons” submission of the applicant under section 108 of IRPA. She noted that
subparagraph (1)(e) applied to cases in which a person would have been a
refugee but the country conditions originally causing this no longer existed..
On that point, the panel concluded that there was no persuasive evidence that
conditions in Poland had changed such that the “compelling reasons” exception
should apply. The panel nonetheless examined the nature of the claimant’s
experiences. It determined that “atrocious” and “appalling” were terms defined
in jurisprudence as “extremely savage or wicked” and “shocking, unpleasant”. It
decided that the facts in case at hand were not of the same order as the brutal
circumstances related in jurisprudence which courts had found constituted a
compelling exception.
[17]
The panel found that Ms. Czesak was neither a
Convention refugee nor a person in need of protection.
Issues
[18]
The applicant cited no less than six issues for
the court to determine as follows:
(1)
Did the panel err by failing to follow the
Chairperson’s Gender Guidelines?
(2)
Did the panel err in determining that the
applicant’s delay in making the claim was a determinative issue, in light of
the medical and psychological evidence?
(3)
Did the panel err in finding that there is state
protection for victims of domestic violence in Poland?
(4)
Did the panel err in its IFA analysis?
(5)
Did the panel err in finding section 108(4) to
be not applicable?
(6)
Did the panel err in failing to analyze the
section 97 risk to the applicant?
Standard of
review
[19]
The standard of review for all six issues is
that of reasonableness. This denotes a deferential standard towards the
decision-maker. The decision will be reasonable where the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190, at paragraph 47).
Analysis
[20]
I find there to be only one serious issue of contention,
relating to whether the IFA in Warsaw is reasonable in light of the applicant’s
particular circumstances and her very difficult medical condition.
[21]
With respect to the other submissions, firstly I
reject the submission that the RPD ignored the Gender Guidelines. Specific
reference was made to them and in the context of this case I am satisfied that
the panel was sensitive to the factors which influence the testimony of the
applicant who was a victim of persecution. The panel accepted that she was a
victim of abuse and took that into full consideration. It was entitled
nevertheless to make credibility findings, but in any event I do not conclude
that these played a role in the decision. By and large, the particular
circumstances of the claimant relate to her medical condition, which is
determined by doctors’ reports and the past living conditions of the claimant.
[22]
I also reject the applicant’s contention that
the panel erred in its analysis of state protection and IFA in its generalized
aspect, apart from the remaining issue of its reasonableness given the
applicant’s medical condition. As noted, the panel carried out a careful
analysis of the law and evidence on these issues. There was ample evidence to
support its conclusions that state protection was available in Poland generally and that a reasonable IFA was available to the applicant in Warsaw in respect of
her protection from persecution.
[23]
Similarly, I reject the applicant’s arguments
with respect to the applicability of subsection 108(4). There was no evidence
of a change in country conditions. Additionally, the applicant’s circumstances
failed to meet the exceptional level of compelling reasons required for this
provision. Similarly, the argument relating to the absence of a separate
section 97 analysis is rejected. The panel’s finding that the objective
element of section 96 had not been met disposed of the section 97 issue. See Balakumar
v Canada (MCI), 2008 FC 20 at para 13; Kaleja v Canada (MCI), 2011 FC 668 at para 34.
Reasonableness
of the IFA Given the Personal Circumstances of the Applicant
[24]
The applicant’s counsel argues that it would be
particularly unreasonable to remove Ms. Czesak to Warsaw in light of her
precarious mental state as described by her doctors. This apprehension is related
to concerns about a serious possibility of the applicant being persecuted no
matter where she lived in Poland. The applicant argues that given her personal
circumstances, it would be unreasonable for her to seek refuge in a place
outside of the village where she had previously lived while residing in Poland.
[25]
In Syvyryn v MCI, 2009 FC 1027, Justice
Snider reiterated that domestic violence engages the Gender Guidelines and that
an analysis needs to take into account the applicant’s age, gender and personal
circumstances in considering the reasonableness of an IFA.
[26]
Regarding state protection and an IFA in Warsaw, the panel concluded that state protection would be reasonably forthcoming, which
as indicated I find an acceptable conclusion in the circumstances.
[27]
The panel also noted that the claimant had
previously received social assistance and presumably could obtain the same in Warsaw. The applicant did not know whether she could find work to replace her income from
summer farm work in her village, but she did not indicate that she could not
work. In terms of support, the panel noted that the applicant was able to come
to a foreign country and had little or no support from her family here. Given
the freedom of movement within the country and her past mobility, the panel
found that it would not be objectively unreasonable for her to relocate to
another city, particularly Warsaw. I find this conclusion to be reasonable on
the basis of the evidence before the panel.
[28]
However, the applicant takes particular exception
to the panel’s conclusion that the applicant’s mental state as described by her
doctors, did not make it unreasonable for her to relocate to Warsaw.
[29]
In its reasons, the panel accepted that the
claimant was abused, but noted that psychological intervention could be
accessed in Warsaw. Similarly, the panel expressly stated that it considered
counsel’s submissions, as well as the medical report of Dr. Durish, which it
described as inconclusive, including with respect to a diagnosis of the
applicant suffering from Post-Traumatic Stress Disorder.
[30]
The applicant claims that the panel was not
transparent on this issue in that it relied upon one line of Dr. Durish’s
report while ignoring the totality of the report. Moreover, the panel’s review
of the medical evidence was limited to Dr. Durish‘s report. Significantly, it
failed to mention or consider other medical reports, particularly that of Dr.
Maria Koczorowska, a medical psychiatrist.
[31]
With regard to these allegations, I am satisfied
that Dr. Durish’s report may be described as inconclusive in respect of the
applicant’s psychological state in many regards, and not just in relation to
her PTSD symptoms. The report speaks to concerns about significant substance
abuse, and notes that the applicant somaticizes her trauma symptoms to a
significant degree, as well as finding it very difficult to assess her
intellectual functioning. It is noted that Dr. Durish’s area of clinical
expertise is in the assessment and treatment of trauma, for which she has
received considerable postgraduate and professional training.
[32]
In relation to Dr. Koczorowska’s report, it
states that the applicant was initially seen commencing April 19, 2012. I find
that the two-page report is considerably more categorical in its conclusions
than Dr. Durish’s report. Dr. Koczorowska describes the applicant as suffering
from a severe psychomotor retardation with a diagnosis of major depressive
disorder, posttraumatic stress disorder associated with general medical
condition and psychological factors linked to post-concussion syndrome.
[33]
Moreover, Dr. Koczorowska specifically opines on
the very issue of the applicant’s removal to Poland, stating “I believe that
she cannot return to Poland because it will for sure cause deterioration
in his (sic) condition.… Therefore I fully support her request to be
granted permanent residence in Canada on humanitarian basis.” [Emphasis added]
[34]
Medical reports from Dr. Stachula were also
introduced into evidence. He initially treated the applicant in 2008 when she
was involved in a motor vehicle accident. In his summary report of March 21,
2011, he noted that the applicant complained of low back pain and migraine
headaches. He advised her to reduce her alcohol consumption because of
headaches. He concluded that the patient definitely suffered from a grief
reaction after her mother’s death. His view was that her posttraumatic
headaches related to her head injury. He states that she apparently was in good
health before the accident, but after it took pain and anxiety medication
regularly. No mention is made in his report of domestic violence, or domestic
violence having contributed to her head injury issues.
[35]
It is to be noted that Dr. Koczorowska also
indicated that the applicant was doing well until detained by immigration
authorities and that her symptoms got worse after her mother died, since which
time she had been struggling.
[36]
In light of the foregoing evidence, including
that of Dr. Koczorowska, I am satisfied that it was reasonable for the panel to
conclude that the evidence regarding the applicant’s medical condition was
inconclusive.
[37]
Moreover, I am of the view that decision-makers
should be wary of reliance upon forensic expert evidence obtained for the
purpose of litigation, unless it is subject to some form of validation. This
remark would apply to the report of Dr. Koczorowska which went as far as to
advocate on the applicant’s behalf in the guise of an opinion on the very issue
before the panel.
[38]
Our legal system has a long experience in
dealing with forensic experts testifying on matters relating to technical
evidence for the purpose of assisting courts in their determinations. From that
experience, the courts have developed what I would describe as a guarded and
cautionary view on conclusions of forensic experts which have not undergone a
rigorous validation process under court procedures.
[39]
Some of these procedures intended to validate
expert opinions include the early exchange of reports, by which I mean that
normally there is a rebuttal report as a first line of validation. The parties
are normally entitled to obtain extensive background information on the
drafting of the reports, including production of correspondence between lawyers
and experts and knowing whether there are other reports in existence not being
relied upon. These procedures are further enhanced by the right to question
opposing parties in discovery in relation to issues raised in reports. Most
importantly, courts are provided the opportunity to assess the reliability of
the expert opinions under cross-examination by competent lawyers, often under
the direction of their own experts. In some cases, decision-makers will even
involve neutral experts to assist resolution of more controversial points of
opposing forensic experts.
[40]
This is not to say that every expert report
prepared for litigation should be dismissed as having no, or little, weight.
But what the court’s experience with forensic experts does suggest in relation
to these reports being proffered before administrative tribunals where there
exists no defined procedure to allow for their validation, is that caution
should be exercised in accepting them at face value, particularly when they
propose to settle important issues to be decided by the tribunal. In my view
therefore, unless there is some means to corroborate either the neutrality or
lack of self interest of the expert in relation to the litigation process, they
generally should be accorded little weight.
[41]
In this matter, the reports of Drs. Durish and
Stachula I would think exhibit more of the required imprimatur of reliability,
by the circumstances of the timing and of their involvement with the applicant
and their more neutral and objective relation of conditions and guarded
opinions that suggest reasonable limits on their diagnoses and prognoses of the
applicant’s condition.
[42]
I see no basis therefore, to uphold the
applicant’s complaint that the panel was selective or erred in failing to
consider medical reports in reliance upon its conclusion that “it would not be
unreasonable considering all the circumstances including those particular to
the claimant for her to seek refuge in another city in Poland, particularly Warsaw”.
[43]
Accordingly, the application is dismissed.
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