PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, ch. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated July 27, 2005, where the Board found that the applicant was not a Convention refugee or a person in need of protection.
ISSUES
[2] The applicant raises the following three issues:
1. Did the Board commit a reviewable error in finding that the applicant had failed to rebut the presumption of state protection?
2. Did the Board commit a reviewable error in finding that the applicant had an internal flight alternative (IFA) in Bulgaria?
3. Did the Board provide insufficient reasons for its decision to dismiss the applicant's claim?
[3] For the following reasons, the answer to the first question is affirmative and the present application for judicial review shall be granted. In light of the answer to the first issue, it is not necessary for this Court to address the second and third issues.
FACTS
[4] The applicant is a citizen of Bulgaria, of Roma ethnicity. She was born in Karlovo on May 15, 1978.
[5] She arrived in Canada via London, St. Lucia and Barbados on July 25, 2002, and applied for asylum as a Convention refugee immediately upon arrival.
[6] The applicant was brought up in the Roma culture and traditions. She identifies herself as a Roma, and is identified as such by others in Bulgaria.
[7] She has faced discrimination because of her Roma ethnicity since her earliest school days and until her departure in 2002.
[8] In October 1996, she was abducted by four Bulgarian men and raped by two of them. When they released her, her assailants threatened to kill her if she reported the incident to the police. She and her family attempted to file a complaint, but the police officer they dealt with was rude and dismissive.
[9] In 2000, the applicant's father opened a store in the Romani neighbourhood of Karlovo. He was soon harassed, first by police officers, then by racist Bulgarians who demanded money and threatened to take the applicant if her family did not agree to their financial demands.
[10] The applicant's family again attempted to report this matter to the police, but received no assistance.
[11] Another similar incident occurred in November 2001, but this time the police intervened and the racists fled. When the applicant and her family went to the police station the next day to seek the arrest and prosecution of their attackers, they were told that the police would not assist them beyond what had already been done.
[12] The store closed in December 2001 because her family was unable to run the business while being forced to pay protection money to the people who were harassing them.
[13] In January 2002, she and her brother were assaulted and sustained injuries, but the police again refused to investigate the matter. The applicant threatened to report the police officers who refused to help her to the central police headquarters in Plovdiv, but did not do so.
[14] In March 2002, the applicant was detained by police officers who allegedly suspected her of engaging in prostitution. She was verbally and physically abused during her detention.
[15] Her family sought help from a Roma defence organization, but received no assistance.
[16] The harassment and violence did not stop, and continues to this day. The applicant and her family fear that if she returned to Bulgaria she could be forced into prostitution by these racist Bulgarian men, who claim that her family still has an outstanding debt toward them.
DECISION UNDER REVIEW
[17] The Board found that the applicant had not rebutted the presumption of the availability of state protection in Bulgaria, and noted that she had not sought legal assistance after the alleged March 2002 incident involving Karlovo police officers.
[18] The Board also determined that the applicant's claims that she did not have an IFA elsewhere in Bulgaria and that violent racist groups were in league with the police was not supported by the documentary evidence submitted by the Refugee Protection Officer at the hearing.
[19] The Board therefore concluded that the applicant could avail herself of an IFA in Bulgaria.
ANALYSIS
Standard of review
[20] The findings of the Board regarding the existence of an Internal Flight Alternative in Bulgaria are findings of fact, and the intervention of this Court is only justified in the presence of a patently unreasonable error (Ashiru v. Canada (Minister of Citizenship and Immigration), 2006 FC 6, [2006] F.C.J. No. 3 (T.D.) (QL), Singh v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (T.D.) (QL)).
[21] The jurisprudence of this Court is divided regarding the applicable standard of review to a Board's determination that an applicant had not rebutted the presumption of the availability of state protection.
[22] In Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (T.D.) (QL), Canada(Minister of Citizenship and Immigration) v. Smith, [1999] 1 F.C. 310 (T.D.) and Racz v. Canada(Minister of Citizenship and Immigration), 2004 FC 1293, [2004] F.C.J. No. 1562 (T.D.) (QL), it was found to be reasonableness simpliciter.
[23] In Malik v. Canada (Minister of Citizenship and Immigration), 2005 FC 1189, [2005] F.C.J. No. 1453 (T.D.) (QL) and Muszynski v. Canada (Minister of Citizenship and Immigration), 2005 FC 1075, [2005] F.C.J. No. 1329 (T.D.) (QL), it was determined that the findings of fact which led a Board to conclude that a claimant could benefit from state protection were reviewable under the standard of patent unreasonableness.
[24] The third issue, regarding the alleged insufficiency of the Board's reasons, pertains to procedural fairness, which is not subject to a particular standard of review. If this Court determines that the Board provided insufficient reasons for its decision, the application for judicial review must be granted.
1. Did the Board commit a reviewable error in finding that the applicant had failed to rebut the presumption of state protection?
[25] The applicant submits that the Board committed a reviewable error in finding that she had not rebutted the presumption of state protection.
[26] The applicant contends that Kadenko v. Canada(Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.) cannot be interpreted to suggest that an individual must exhaust all avenues before the presumption of state protection can be rebutted. In this case, the fact that the applicant was persecuted by the Bulgarian police and that the credibility of her allegations regarding police brutality was not questioned should be sufficient to rebut this presumption.
[27] The fact that agents of the state persecuted the applicant reflects negatively on the democratic nature of Bulgaria's institution, and the burden should therefore be lower (Chaves, above, and Molnar v. Canada(Minister of Citizenship and Immigration), 2002 FCT 1081, [2003] 2 F.C. 339 (T.D.)).
[28] The applicant urges that it was unreasonable for the Board to have expected the applicant to seek state protection even though she had sought the help of police in vain on six different occasions, and that she had been abused by police officers in March 2002.
[29] The applicant further submits that the Board committed a reviewable error by failing to consider documentary evidence that supported her claim. While the applicant does not dispute that the Board need not refer exhaustively to all the evidence before it, she affirms that the U.S. Department of State Report on Human Rights in Bulgaria, as well as the Immigration and Refugee Board Country of Origin Research Document BGR 43403 support her allegation that Roma are mistreated, beaten and killed by police in Bulgaria.
[30] The respondent submits that this last argument is wholly without merit, and that the panel does comment on similar evidence in its reasons. The respondent also argues that the references of anecdotal evidence of persecution of Roma in the reports cited by the applicant do not demonstrate that the panel erred in a reviewable manner.
[31] With respect, I cannot agree with the respondent's argument. With the exception of the applicant's claim that her father had sought the help of an association which promotes the interests of Romas, the Board did not question the credibility of her allegations.
[32] The documentary evidence before the Board, coupled with the fact that the applicant had been unable to obtain police assistance on six different occasions, including instances of rape and assault causing bodily harm, constitutes evidence of the state's relative indifference to the persecution of the Roma.
[33] When the state turns a blind eye to persecution committed by third parties, the presumption of the availability of state protection is lowered considerably. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Justice La Forest wrote at paragraph 50:
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. (emphasis added)
[34] In Rajudeen v. Canada(Minister of Employment and Immigration), [1984] F.C.J. No. 601 (F.C.A.) (QL), Justice Stone wrote:
The respondent contends that no persecution occurred in this case because the treatment complained of was visited upon the applicant by bands of thugs operating outside the law rather than by the state itself. It pointed to some evidence which it claimed as establishing that the state indeed frowned upon the sort of behaviour that is in question and had provided a means of redress in the courts of Sri Lanka. But I think we must look at what actually occurred. It is true that the acts complained of were not committed by the state or its agents. On the other hand, a consideration of the evidence as a whole convinces me that the police were either unable or, worse still, unwilling to effectively protect the applicant against the attacks made upon him. Accordingly, because of his race and religion, the applicant could not reasonably expect to be protected by an important state agency against unlawful attacks. In my view, he had good reason to be fearful and, objectively, such fear was well-founded.
[35] I am of the opinion that this case is quite similar, and that it was unreasonable for the Board to expect the applicant to turn to the Bulgarian state for protection. The Board therefore committed a reviewable error in finding that the applicant had not rebutted the presumption of state protection.
2. Did the Board commit a reviewable error in finding that the applicant had an internal flight alternative (IFA) in Bulgaria?
3. Did the Board provide insufficient reasons for its decision to dismiss the Applicant's claim?
[36] In light of the answer to the first issue, it is not necessary to address the second and third issues.
[37] Neither party wished to propose a serious question of general importance.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5390-05
STYLE OF CAUSE: GALINA DELEVA STAYKOVA
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
Ann Brailsford-Child FOR APPLICANT
Lorne McClenaghan FOR RESPONDENT
SOLICITORS OF RECORD:
Ann Brailsford-Child FOR APPLICANT
Sarnia, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario