Date: 20000726
Docket: IMM-304-00
Between:
DANIEL BARTONIK and ALENA KREJCIRIKOVA,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon, J.
[1] This is an application, brought pursuant to section 18.1 of the Immigration Act, R.S.C. 1985, Chap. I-2, for judicial review of a decision by the Convention Refugee Determination Division (C.R.D.D.) of the Immigration and Refugee Board, dated
January 4, 2000. The decision was to the effect that the applicants are not convention refugees. Leave to seek judicial review was granted by order dated April 27, 2000. The applicant seeks an order quashing the C.R.D.D."s decision.
Facts
[2] The two applicants, Mr. Daniel Bartonik and Ms. Alena Krejcirikova, are husband and wife. Both are young citizens of the Czech Republic. Ms. Krejcirikova claims, in addition, to be one half Roma or Gypsy. She was in the Czech Republic for approximately only five years prior to coming to Canada, while Mr. Bartonik was born and raised there.
[3] Ms. Krejcirikova"s problems began when her first husband (now an ex-husband) found out that her father"s family was Gypsy. She alleges that he insulted and assaulted her and uttered death threats against her thereafter. When she went to the police, she complains that they were not much help. Eventually, she moved out on her own but her husband repeatedly came to her apartment to stand at the door and threaten her. The police were a little more helpful during this period, taking the husband away with them or getting him, by other means, to leave her apartment. Fortunately, for Ms. Krejcirikova, she later met Mr. Bartonik and a relationship blossomed between the two. Ms. Krejcirikova eventually secured a divorce from her first husband.
[4] Aside from the problems with her husband, Ms. Krejcirikova relates that she had to deal with insults and threats from neighbours and with being fired from her job at a night club because of her ethnicity. Mr. Bartonik also began to be insulted and threatened by some, while others simply stopped talking with him after it was discovered that he was seeing a Roma woman. Both eventually had their fill of this treatment and fled to Canada in October of 1997. They declared themselves to be convention refugees and a hearing was eventually convened before a panel of the C.R.D.D. on October 6, 1999.
[5] In her submissions to the panel, Ms. Krejcirikova alleged a well founded fear of persecution at the hands of her first husband and of other people in her home country as a result of her Roma ethnicity and as a result of being a woman subject to domestic abuse. Mr. Bartonik alleged a well founded fear of persecution as a result of being the common law spouse of a Roma.
[6] In its decision dated December 31, 1999, the panel found insufficient credible evidence to establish that Czechs would perceive Ms. Krejcirikova as Roma. As a result, it concluded that there is no reasonable chance that she would experience persecution as a result of being perceived as a Gypsy. In respect of Ms. Krejcirikova"s first husband, the panel stated that, while she might have suffered persecution at his hands during their marriage, she had not been able to rebut the presumption of availability of State protection. In particular, the panel looked at the times in which the police either dealt with Ms. Krejcirikova at the police station or, in some way, compelled the first husband to leave her alone after she had moved away from him. Aside from the finding of availability of State protection, the panel also found that there was insufficient evidence before it to establish that there was a reasonable chance that she would be persecuted by her ex-husband if she returned to the Czech Republic. As a result of all this, Ms. Krejcirikova was found not to be a Convention refugee. Nor was Mr. Bartonik found to be a Convention refugee.
Legal Issues
[7] There are four main issues raised in this application for judicial review. The first issue concerns the standard of proof which the panel required that the applicants satisfy. The second issue concerns whether the panel properly dealt with the issue of State protection. The third issue concerns whether the panel properly addressed the issue of credibility. The fourth issue concerns whether the panel erred in considering that Ms. Krejcirikova would not be perceived as Roma.
[8] In regard to the first issue, the applicants allege that the panel required Ms. Krejcirikova satisfy a standard of proof which is too high. This standard, they submit, is apparent in the panel"s comment, at page 2 of its reasons: "there is insufficient evidence" to establish that Ms. Krejcirikova "has" a well-founded fear of persecution. They contrast this comment with, among other passages, the statement that "there is no reasonable chance" that Mr. Bartonik would suffer persecution. The applicants then review a number of decisions in which this Court has commented on the issue of what is the appropriate standard of proof which refugee claimants must satisfy.
[9] The respondent submits that, although the panel misstated itself on page 2 of its reasons, the panel, nevertheless, actually applied the correct standard of proof. Specifically, counsel for the respondent points to the panel"s conclusion in respect of
Ms. Krejcirikova"s claim, at page 9 of its reasons, as evidence of the fact that the panel applied the appropriate standard of proof. The applicants reply that an uneven application of the correct standard of proof raises the question of which standard of proof was actually used and the question of whether the panel knew or understood the correct standard of proof. The applicants also submit that the application of the correct standard of proof at page 9 of the panel"s reasons cannot be untangled from the application of the incorrect standard earlier on in its reasons.
[10] The standard facing refugee claimants is set out in section 2 of the Immigration Act as follows:
| 2. (1) In this Act, [...] "Convention refugee" means any person who
|
2. (1) Les définitions qui suivent s'appliquent à la présente loi. [...] "réfugié au sens de la Convention" Toute personne_:
|
[11] What a "well-founded fear of persecution" is, was well canvassed by the Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration) , [1989] 2 F.C. 680. In that case, the standard was described as a balance of probabilities but, more specifically, as a "reasonable chance", "serious possibility" or "good grounds", and more than a "mere possibility". In Re Naredo v. Minister of Employment and Immigration (1981), 130 D.L.R. (3d) 752, (sub nom. Arduengo v. Minister of Employment and Immigration) (1982) 40 N.R. 436 (F.C.A.), Heald J.A. wrote at 437:
| Accordingly, it is my opinion that the board erred in imposing on this applicant and his wife the requirement that they would be subject to persecution since the statutory definition supra required only that they establish "a well-founded fear of persecution". The test imposed by the board is a higher and more stringent test than that imposed by the statute. [emphasis added] |
[12] In Ramasamy v. Canada (Minister of Employment and Immigration) (A-802-91, May 16, 1997) (Pinard J.) of this Court found that a CRDD panel revealed its failure to understand properly the substance of the standard by requiring more than a "little evidence" that the claimant had above a mere possibility of being persecuted. Likewise, in Mirzabeglui v. Canada (Minister of Employment and Immigration) (A-538-89, January 28, 1991), the Court of Appeal agreed that a CRDD panel had misapprehended the standard when the panel wrote that "it must be convinced that the claimant's fear of persecution is well founded". In Zhu v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 213, a CRDD panel was found to have erred in noting that a claimant was "unsuccessful in establishing [...] the existence of an intention to persecute" (at 213-14).
[13] Do the panel"s reasons indicate that it misapprehended what a "well-founded fear of persecution" is? The passage quoted by the applicants at page 2 ("insufficient evidence [...] to establish [...] a well-founded fear of persecution") does not as it uses the words of subsection 2(1) of the Immigration Act . The passage at page 5 ("insufficient credible evidence [...] that the claimant is Roma or that she would be perceived to be Roma") might indicate an error similar to that in Re Naredo v. Minister of Employment and Immigration but is qualified, at page 7, by the following statement:
| However, given its [the panel"s] finding that on a balance of probabilities the claimant is not Roma, and would not be perceived to be Roma [...] |
These two findings of this Court are also based, in part, on the fact that the panel used the words from subsection 2(1) when concluding that Ms. Krejcirikova"s fear of persecution was not well-founded. One would have to ignore this fact and, in essence, take a decontextualized, microscopic analysis in order to find any errors in the standard which the panel invoked, a path which is not open to this Court; Boulis v. Canada (Minister of Manpower and Immigration) , [1974] S.C.R. 875. Finally, the passage at page 9 ("insufficient credible evidence [...] that the claimant had no reasonable expectation of [...] state protection") reveals no errors. That the panel, on occasion, expressed itself, when examining Mr. Bartonik, in a manner whose correctness is more apparent changes nothing. The first main submission, therefore, is dismissed.
[14] In respect of the second issue, the applicants make two submissions. First, they submit that the panel erroneously failed to find that the Czech Republic was unable to protect them as there was evidence that it was unable to do so. In the alternative, the applicants submit that the republic was ineffective at stopping the persecution. Second, the applicants submit that the panel looked only at whether there was a breakdown or complete lack of state protection rather than also turning to look at whether there was evidence of similarly situated individuals let down by the state or evidence of past incidents, experienced by the applicants, in which state protection failed to materialize.
[15] The respondent submits that the evidence of similarly situated people on which the applicants rely at the CRDD hearing, most of which has not been translated from Slovak, does not comprise clear and convincing confirmation of the Czech Republic"s inability to protect its people. As for past personal incidents, the respondent points to instances where the panel found that the police were both willing to protect and effective in their response when sought out.
[16] The respondent is correct to suggest that evidence of similarly situated people or past personal incidents does not, ipso facto, satisfy the requirement of proving a state"s inability to protect its nationals. True, it was stated in Canada (Attorney General) v. Ward , [1993] 2 S.C.R. 689 that refugee claimants must provide "some evidence" in order clearly and convincingly to confirm this inability. That does not mean, however, that the most meagre, the most vapid testimony in respect of a state"s inability will necessarily suffice. The fact that the evidentiary threshold is low, often by necessity, in essence, does not mean that the presumption of state protection is rebutted in a facile manner.
[17] As for the panel"s reasons, it is clear on a reading that it did not err in finding that the evidence of past personal experiences was insufficient to rebut the presumption. The panel did confuse matters by concluding, at page 8 of its reasons:
| Indeed, evidence before the panel indicates that the police were responsive to the claimant"s situation, particularly after she left her husband. [emphasis added] |
The statement does not change the fact, however, that the panel spent considerable time in its reasons looking at the police"s effectiveness in protecting Ms. Krejcirikova as opposed to their willingness to protect (Bobrik v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 13). In particular, the Court notes that the panel reviewed evidence concerning how the police dealt with each of Ms. Krejcirikova"s complaints and how their intervention ended some of the harangues of her then-estranged first husband (see pages 6 and 8 of the panel"s reasons).
[18] If the panel"s reasons as a whole indicate that it correctly considered past personal incidents, there is no indication that the panel also considered the experiences of similarly situated individuals. In particular, no mention is made in the panel"s reasons of the evidence of similarly situated individuals, which was filed before the panel by the applicants and now appears in exhibit "B" to the affidavit of Mr. Bartonik. The panel, at page 8 of its reasons, writes only:
| There is no evidence before this panel that there is a breakdown or complete lack of state protection in circumstances such as those of this claimant. |
This statement is dubiously acceptable. The focus on there being no breakdown of state protection in the Czech Republic, however, combined with the thorough analysis of past personal experiences and a complete absence - not only of any mention of whether there were similarly situated individuals, but of the evidence adduced of such people, suggests that the panel failed to cast its state-protection scrutiny over this last matter. This is enough to impugn the finding in respect of the availability of state protection.
[19] In respect of the third issue, the applicants submit that the panel failed to make findings of credibility in respect of Ms. Krejcirikova"s testimony that she is Roma. Instead, they argue, the panel simply stated that it has "serious doubts" about her allegations. Another problem with this statement, the applicants submit, is that it indicates that the panel did not resolve all doubts in the applicants" favour. A third problem, the applicants submit, is that the term "serious doubt" indicates that the panel held Ms. Krejcirikova to a standard higher than that to which they should have held her. The applicants also allege that the panel did not clearly accept or reject Ms. Krejcirikova"s testimony concerning her father"s ethnicity. Finally, the applicants submit that the Court should mistrust the panel for its arbitrary inconsistency.
[20] The applicants" third submission is virtually without merit. First, the cloudy and mistaken inference to draw from the following passages, quoted by the respondent from pages 5 and 7 of the panel"s reasons, is that Ms. Krejcirikova"s testimony concerning her ethnicity was possibly credible:
| Given all of the foregoing the panel finds that there is insufficient credible evidence before it to establish that the claimant is Roma or that she would be perceived to be Roma. |
| [...] |
| However, given its finding that on a balance of probabilities the claimant is not Roma, and would not be perceived to be Roma, the panel examined her claim on the issue of domestic abuse. |
There are, in essence, many ways clearly and unmistakably to spell out a finding on credibility and the applicants" argument that there is only one specific way to do so has no support in law. The passage on page 7 also dispels the applicants" submission that the CRDD panel, when stating at page 5 that it had a "serious doubt" about Ms. Krejcirikova"s Roma claim, was holding the applicant to an artificially high standard of proof vis à vis credibility. Finally, the fact that the panel did not impugn Ms. Krejcirikova"s allegation that her father was Roma simply means that it was accepted; that some of her statements were accepted (while others were not), however, does, in and of itself, lead this Court to suspect the abilities of the panel, and to doubt the CRDD"s findings.
[21] In respect of the fourth issue, the applicants submit that the only reason that
Ms. Krejcirikova might not be perceived as Roma would be that she could hide her ethnicity, that is, her parentage. The fact, however, that a refugee claimant might be able to hide his ethnicity, can never ground a finding that he or she does not have a well-founded fear of persecution. Moreover, the applicants submit that it would be impossible for Ms. Krejcirikova to hide her parentage from her ex-husband. They argue, therefore, that the finding in respect of her not being perceived as Roma cannot apply to the ex-husband. Finally, the applicants take exception to the panel"s finding that it is implausible for her to be perceived as a gypsy on the basis of her friends, in light of the fact that she knew only one gypsy family while in the Czech Republic.
[22] Counsel for the respondent submits that the panel did not, in fact, find that
Ms. Krejcirikova was not perceived to be Roma because she could hide her heritage. Rather, he submits, the CRDD found that she had not been and would not be perceived as Roma because there was nothing of a gypsy to perceive in her. In this he is correct. The applicants further submit, however, that whether she is actually Roma or not is moot. As counsel for the respondent notes, it found that she would not be perceived as Roma only after considering factors such as appearance, language, cultural practices and friends. The applicants" objection, therefore, is supported by the jurisprudence: Mitac v. M.C.I. , IMM-5988-98, September 13, 1999, Lutfy, J. (as he was) paras. 4 to 6; Pluhar v. M.C.I., IMM-5334-98, August 27, 1999, Evans, J. (as he was).
[23] As for the panel"s finding that it is implausible that Ms. Krejcirikova would be identified as a gypsy through her friends, the applicants are correct that there is no minimum number of gypsy friends Ms. Krejcirikova needs to befriend before a CRDD panel should consider that her ethnicity will be perceived by potential persecutors. It is possible, however, for a panel to consider that a lone friend or family, in certain circumstances, is insufficient to base such a finding. In the case under review, the evidence is that Ms. Krejcirikova befriended only one Roma family in the five years that she was in the Czech Republic. All it appears to take, in that poisonously racist society, is only one "friend" to start up the persecution.
[24] As for the applicants" submission in respect of the ex-husband, the respondent submits that whether he (the ex-husband) perceived her as Roma is irrelevant as the panel found that she had, essentially, nothing to fear from him. This is not true. In fact, it is clear from Ms. Krejcirikova"s testimony and from the panel"s reasons that the finding on whether she would be perceived as a gypsy does not apply to the ex-husband. It is clear, in essence, that he did perceive her in such a manner. The applicants" submission is correct.
[25] It defies this judge"s credulity that the protection of the State is not readily available to citizens such as Ms. Krejcirikova when, within living memory, the country known as Czechoslovakia was cruelly invaded and occupied by the Nazis who persecuted and murdered both Jews and Gypsies. Indeed, the whole town of Lidice was massacred by the Nazis in revenge for the death of their precious Reinhard Heydrich . Now, it is obvious on the evidence filed in this case (and commonly known) that the allegedly civilized Czech State does not do enough to stamp out and suppress the racist nazism of the "skin-heads", it having apparently learned nothing about protecting its citizens from the same sort of the racist thugs who are permitted to run amok, like Ms Krejcirikova"s first husband.
Conclusion
[26] The CRDD panel having erred inter alia in its finding on the availability of state protection for Ms. Krejcirikova, the decision is quashed and remitted to a differently constituted panel. The applicants having not taken exception to the panel"s decision in respect of Mr. Bartonik, his application for judicial review is dismissed, but his status ought to be reviewed astutely on an H & C basis.
"F.C. Muldoon"
Judge
Winnipeg, Manitoba
July 26, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-304-00
| STYLE OF CAUSE: DANIEL BARTONIK and ALENA KREJCIRIKOVA, v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Winnipeg, Manitoba
| DATE OF HEARING: June 27, 2000 |
REASONS FOR ORDER OF
THE HONOURABLE MR. JUSTICE MULDOON
DATED JULY 26, 2000
APPEARANCES:
David Matas for the Applicants
Kevin Staska
Dept. of Justice
310 - 301 Broadway
Winnipeg, MB R3C 0S6 for the Respondent
SOLICITORS OF RECORD:
David Matas
Barrister & Solicitor
602 - 225 Vaughan Street
Winnipeg, MB R3C 1T7 for the Applicants
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent