Docket: IMM-2215-16
Citation:
2017 FC 53
Ottawa, Ontario, January 16, 2017
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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ANGEL YORDANOV
STOILKOV
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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
[1]
Angel Yordanov Stoilkov [the Applicant] has
applied for judicial review of a negative Decision dated February 29, 2016 [the
PRRA Decision] made by a Pre-Removal Risk Assessment Officer [the Officer].
This application is made pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the IRPA].
I.
Background
[2]
The Applicant is a 47 year old male citizen of
Bulgaria. He alleges that he is of Roma ethnicity. He arrived in the U.S. on a
visa and then entered Canada illegally with his wife, and his daughters who are
26 and 9 years of age. They are also citizens of Bulgaria.
[3]
The Applicant alleges that he has experienced
discrimination due to his ethnicity in his schooling, housing, employment, and
access to medical treatment. He says he fears the police. He also fears the ‘bodyguards’ of a property manager named Boris.
[4]
The Applicant and his wife opened a second hand
clothing business in 2003. According to the Applicant, they had no choice but
to go into business for themselves because no one would hire them due to their
ethnicity. The Applicant and his wife rented store space in a plaza to conduct
their business.
[5]
In 2009, the plaza was sold and the new property
manager, whose name was Boris, had ‘bodyguards’
who extorted money from all the Roma business people in the plaza, saying that “Gypsies” must pay “protection
money” to do business in Bulgaria. The Applicant alleges that they
targeted Roma because they knew that the state would not protect them. Ethnic
Bulgarians who rented space in the plaza were not required to pay. The
Applicant also alleges that Boris illegally raised the rent many times.
[6]
The Applicant and other Roma business people
went to the Police to complain about the extortion and illegal rent increases,
but the police were unwilling to assist them.
[7]
On September 28, 2009, the door to their store
was padlocked by the landlord, and the Applicant’s subsequent complaint to the
police was ignored. After the Applicant broke into the store to retrieve the
inventory, Boris’s ‘bodyguards’ began to
threaten him and his family. They left their home and hid with Roma friends in
a different village.
[8]
On March 10, 2011, the Applicant was attacked by
one of Boris’s ‘bodyguards’ while returning home
with his daughter [the Assault]. He alleges that his attackers made reference
to his defiance of Boris. They mentioned his removal of the inventory and his complaint
to the police, and said they knew where he lived and that he should be careful.
The Applicant alleges that the next day he again complained to the police. The
police officer was dismissive but agreed to take a report once the Applicant
threatened to speak to his superior.
[9]
Threats from the ‘bodyguards’
continued and, at the end of March 2011, the Applicant inquired at the police station
about the status of his complaint. He was told that “Gypsy
matters are not a priority”. In April 2011, he complained to the
Prosecutor’s Office about both the Assault and the lack of response.
[10]
In May 2011, the Applicant received a summons to
attend at the police station for an inquiry [the Summons]. Upon his arrival, he
was taken to a small room, where the police officers slapped him across the
face multiple times. They called him the “notorious
mangal troublemaker” and asked if he really believed the Prosecutor’s Office
would help him. They threatened that Boris and his friends would “take care” of him and his family.
[11]
Shortly after the beating, at the police
station, the Applicant received a letter from the Prosecutor’s Office saying
that his complaint had been closed due to a lack of evidence.
[12]
The Applicant and his family feared for their
lives, moved out of their home, raised money to flee Bulgaria, obtained visas
for the U.S. and arrived there on March 30, 2012. They then crossed the
Canadian border on an unguarded road. They were picked up by the RCMP, and made
claims for refugee protection at the port of entry in Stanstead, Quebec.
[13]
The Applicant alleges that, since his departure
from Bulgaria, Boris’ ‘bodyguards’ have harassed
and beaten his relatives. On October 3, 2013, the ‘bodyguards’
questioned the Applicant’s brother, Kiril, about his whereabouts. When he
refused to cooperate, they beat him. Kiril received medical treatment and went
to the police. They refused to take a report. On August 5, 2015, two men went
to the Applicant’s mother’s house and questioned her about him in a threatening
manner.
[14]
On November 11, 2012, the Applicant was charged
with possession of a device to commit fraud. Charges of fraud over $5,000 and
identity theft were later added. The Applicant was convicted of all three
offences on September 16, 2014.
[15]
On December 2, 2014, the Applicant was found to
be inadmissible to Canada on the grounds of serious criminality under subsection
36(1)(a) of the IRPA, because he had been convicted in Canada of fraud which
carries a maximum sentence of over 10 years. He was therefore ineligible for
refugee protection pursuant to subsection 112(3) of the IRPA, and his claim
became ineligible for referral to the RPD. His refugee proceedings were therefore
terminated and a deportation order was issued. However, he remained eligible for
a PRRA and his removal was stayed pending the outcome of this judicial review.
II.
The PRRA Decision
[16]
The Officer’s PRRA Decision shows that he
considered the Applicant’s Personal Information Form [PIF] together with his
PRRA application and his counsel’s PRRA submissions.
[17]
The Officer acknowledged that the PRRA material
expanded on the allegations in the Applicant’s PIF. The PRRA material stated
that racists continue to try to find him, and described the incidents involving
his brother on October 3, 2013, and his mother on August 5, 2015. The Applicant
also said that the extortionists could find him anywhere in Bulgaria, and are
aware that the police will not protect him. Finally, the Applicant said that
Roma in Bulgaria are subject to systemic discrimination that rises to the level
of persecution, and that he cannot seek state protection due to discrimination
by the Bulgarian police.
III.
The PRRA Decision
[18]
The Officer noted that because the risks alleged
by the Applicant in his claim for refugee protection had not been considered by
the IRB, he would consider all evidence submitted by the Applicant in
his refugee claim and PRRA application.
[19]
The Officer considered: 1) the personalized risk
to the Applicant from Boris, the ‘bodyguards’ and extortion; and 2) systemic
discrimination against Roma in Bulgaria.
[20]
The parties agree that the Officer did not make
a negative finding of credibility.
IV.
Personalized Risk from Boris and Extortion
[21]
The Applicant submitted two documents from 2003
and 2006 to confirm that his wife was the owner of a clothing store. However,
the Officer found that since more recent documentation was not provided, “these documents do not demonstrate that the property was sold
to Boris in 2009.” The Officer therefore assigned “very little probative value” in support of the
Applicant’s allegation of risk from Boris and his associates, and the
allegation that Boris raised the rent many times.
[22]
The Applicant submitted the following documents
in support of his allegation that he was assaulted by Boris’ ‘bodyguards’ in March 2011:
1.
a medical certificate from a doctor in Bulgaria
dated the day after the Assault;
2.
a copy of a handwritten complaint [the
Complaint] submitted to the police on that same day;
3.
a copy and translation of the police Summons;
4.
a copy and translation of a note from the police
office [the Police Note] dated June 28, 2011 indicating the Prosecutor’s Office
file was closed for lack of evidence;
5.
an email from his brother Kiril dated August 13,
2015;
6.
a copy and translation of Kiril’s medical
report;
7.
a copy of his sister-in-law’s positive refugee
acceptance notice;
8.
a letter from a Canadian psychologist; and
9.
a letter from Ronald Lee, an “author, educator and lecturer” on the subject of the
Roma.
[23]
The Officer reviewed each document and concluded
that each had little probative value, and that, “globally”,
they were not sufficient to “demonstrate that the Applicant
is at risk at the hands of Boris” or to “demonstrate
that the Applicant filed a complaint against Boris with the police which was
ignored due to the Applicant’s ethnicity.”
[24]
Specifically, the Officer found that while the
medical certificate confirmed that the Applicant had sustained injuries
consistent with being hit with a blunt object, the doctor “did not have firsthand knowledge of the events”, and
therefore could only confirm that the injuries could have been sustained, as
alleged, but could not “indicate exactly who caused
them or how.” The certificate was found not to establish on its
own that the Applicant was attacked by Boris’ ‘bodyguards.’
[25]
The Officer criticized the Applicant’s
handwritten police Complaint because it did not name Boris or the individual
who allegedly attacked him. As well, the names of the neighbours who allegedly
heard his shouts for help were not included.
[26]
The Summons was criticized by the Officer
because it did not indicate why the Applicant was to attend at the police
station, and the Applicant did not provide corroborating evidence that the
police summoned him to threaten him so that he would drop his Complaint.
[27]
The Police Note indicated the Applicant could
contact the Sofia Regional Prosecutor’s office if he disagreed with his
complaint being discontinued due to lack of evidence. However, the Officer noted
that the Applicant did not provide evidence that he did so, or evidence to
support his allegation that the file was discontinued because he was Roma.
[28]
The email from his brother Kiril alleged that
individuals looking for the Applicant had threatened his mother at her house;
that Kiril had not yet recovered from being beaten; and that Kiril’s complaint
to the police had been closed. The Officer noted that Kiril did not name the
individuals who assaulted him or the reason for the assault, or provide
supporting documentation of his police complaint. It was therefore not possible
to establish the beating was linked to Boris. The Officer gave “very little probative value” to this document.
[29]
Kiril’s medical report indicated he had been
admitted complaining of nausea, abdominal pain and vomiting, and that he had
had surgery. It did not, however, explain how this was linked to the
allegations. Very little probative value was given to this document.
[30]
The Applicant’s sister-in-law’s positive refugee
acceptance, dated December 10, 2010, did not explain why she and her
family were granted refugee protection. Given that the Applicant did not
explain why his claim was linked to his sister’s, the Officer found that this
document was irrelevant.
[31]
The letter from Gerald Devins, a psychologist,
was dated December 20, 2014. He indicated that the Applicant had major
depressive disorder and required treatment, and his condition could improve
with care and freedom from the threat of removal. The Officer gave the letter
little probative value since it was based on the Applicant’s testimony in only one
interview and did not link the Applicant’s mental state to the alleged risks in
Bulgaria.
[32]
The letter from Ronald Lee, an “author, educator and lecturer”, is dated September
29, 2014. Mr. Lee wrote he had known the Applicant and his family since May
2012 and that, in his opinion, due to their Roma ethnicity, they had suffered
both persecution and systemic discrimination in Bulgaria. The Officer gave the
letter little probative value because it was based on the Applicant’s testimony
to Mr. Lee, and not on Mr. Lee’s firsthand knowledge.
[33]
The Officer concluded that the Applicant had
failed to establish personal risk upon return to Bulgaria.
V.
Persecution Due to Roma Ethnicity
[34]
The Officer acknowledged the Applicant’s claims
that Roma in Bulgaria face systemic discrimination that cumulatively rises to
persecution and that he cannot obtain “adequate”
state protection due to discrimination by the police.
[35]
However, the Officer found that state protection
existed. According to him, the numerous documents submitted by the Applicant
and “other recent objective sources” indicate
that:
…parts of Bulgarian society, including the
police, may have discriminated against Roma in the past and may continue to do
so today. However…government authorities continue to make efforts to provide
services and recourses to Roma.
[36]
Specifically, the Officer noted that Bulgaria
has established a Commission for Protection against Discrimination, and that
the Working Group for the Universal Periodic Review of the UN Human Rights
Council reported a solid legal framework existed to combat hate crimes and
discrimination, and that prosecutor’s offices had become better at liaising
with local authorities to investigate such crimes.
[37]
Secondly, the Officer found that the Applicant
had failed to discharge his “heavy burden” to “exhaust all of the recourses available” domestically
before claiming refugee status. This conclusion was based on his determination
that Bulgaria is an “imperfect but functioning
democratic state”.
VI.
The Issues
[38]
In my view, the determinative issues are:
A.
Did the Officer reasonably assess the Applicants
documentary evidence?
B.
Did the Officer reasonably asses the adequacy of
state protection?
VII.
Discussion and Conclusions
A.
Did the Officer reasonably assess the Applicant’s
documentary evidence?
[39]
I have found that significant aspects of the
assessment of the documentary evidence were unreasonable. For example:
i.
The Officer was given the originals and translations
of two documents showing that the Applicant’s wife owned a clothing store in
2003 to 2006. However, the Officer rejected them because they did “not demonstrate that the property was sold to Boris in 2009”.
The first problem with this conclusion is that the plaza was not sold to Boris.
He was a property manager. Secondly, it was unreasonable to expect the
Applicant to have documents showing the transfer of the ownership of the plaza.
The documents were produced simply to establish that the Applicant’s wife owned
a store in 2003 and 2006 and therefore probably still owned it in 2009. The
documents should have been accepted on that basis.
ii.
In my view, the Officer was unreasonable when he
failed to conclude that, taken together, the Applicant’s documents provided
some corroboration of his evidence of the Assault on March 10, 2011. Those
documents included:
a)
a March 11, 2011 Medical Report disclosing
injuries; and
b)
a March 11, 2011 Complaint to the police about
the beating.
The medical report was not given any significant weight because it
depended on the Applicant’s account of events, and the Complaint was criticized
for lacking detail. In my view, the medical report was important because it
described injuries consistent with the Assault, and the Complaint shows that
the Applicant promptly reported the Assault. The police, had they taken the
Complaint seriously, had a duty to investigate and question the Applicant to
obtain a full description of the Assault and the surrounding circumstances. The
Officer appeared to believe that the Applicant’s Complaint should have read
like a completed police report. It was particularly unreasonable to criticize
the Applicant for not including the bodyguard’s name and address in the
complaint when there was no suggestion that he had such information. His
failure to mention that his attacker worked for Boris, and his failure to name
his neighbours/witnesses would have been remedied in a police interview.
iii.
The Applicant is also wrongly criticized by the
Officer for failing to submit evidence to demonstrate what enquiries he made of
the local police about the investigation of the Assault. His sworn evidence was
that he questioned the police at the end of March 2011 and was told they had
more pressing matters. He then made a complaint to the Prosecutor’s Office. The
corroboration of this complaint is found in the June 28, 2011 Police Note
showing that his file had been forwarded to the prosecutor’s office but was
closed for lack of evidence.
iv.
There were also requirements for corroboration
that would be impossible to obtain. For example. The Officer stated:
a)
that the Applicant should have had corroboration
for his belief that the Summons was a fake;
b)
that he should have had corroboration to show
that his file was closed because he was Roma; and
c)
That he should have provided corroboration to
demonstrate that the Prosecutor deliberately ignored or refused to investigate
his file.
v.
The Officer is critical of the Applicant for
including his sister-in-law’s PIF and refugee acceptance notice. He says the
Applicant failed to explain the relevance of this material. However, on page
two of Counsel’s PRRA submissions dated August 19, 2015, Counsel states “Finally, the PIF and Positive decision […] are submitted in
support of the Applicant’s Roma ethnicity.”
[40]
In my view, the presumption of truthfulness
described in Maldonado v Canada (MEI), [1980] 2 FC 302 (CA), does not
apply in this case given that the Applicant crossed into Canada illegally and
has been convicted of fraud. In these circumstances, it was reasonable to give
his evidence close scrutiny and require some corroborative evidence. However, it
was unreasonable to require corroborative evidence that is unlikely to exist or
would be impossible to obtain such as that described above. It was also unreasonable
to make errors of fact and fail to reach reasonable conclusions when documents
were considered together.
B.
Did the Officer reasonably assess the adequacy
of state protection?
[41]
In view of my conclusions about the assessment
of the evidence, which alone justify granting this application for judicial
review, I will simply highlight some concerns I have about the Officer’s
treatment of this issue:
- The Officer
imposed a heavy burden of proof on the Applicant to show a lack of state
protection because Bulgaria is a functioning, though imperfect, democracy.
In my view, an imperfect democracy does not necessarily justify the
imposition of a heavy burden;
- the Officer did
not sufficiently address the adequacy of the protection. Instead, the
focus was on efforts and improvements;
- the Officer made
no mention of the Applicant’s reports to the police, his threat to summon
a senior officer, and his complaint to the Prosecutor’s Office; and
- The Officer
failed to mention that the Applicant alleged that he had been beaten by
the police, and that he viewed them (i.e. the State) as an agent of
persecution.
VIII.
Certified Question
[42]
No question was posed for certification.
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