Date: 20150421

Docket: IMM-1785-12

Citation: 2015 FC 513

Toronto, Ontario, April 21, 2015

PRESENT:    The Honourable Mr. Justice Campbell

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 SCR 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.

ORDER

THIS COURT ORDERS that the decision under review is set aside and the matter is referred back to a differently constituted panel for redetermination.

There is no question to certify.

"Douglas R. Campbell"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: