TC0-08526

RAD File / Dossier de la SAR : TC0-08526 TC0-08527 / TC0-08528 / TC0-08529 TC0-08530 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 25, 2021 Date de la décision Panel K. Qureshi Tribunal Counsel for the persons who are the subject of the appeal Marvin M. Moses Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX(Principal Appellant or PA) is a citizen of the Slovak Republic (also known as Slovakia). XXXX XXXX (Associate Appellant or AA) is a dual citizen of the Slovak Republic and the Czech Republic. Their children, XXXX XXXX, XXXX XXXX, XXXX XXXX (Minor Appellants) are citizens of the Czech Republic. The Appellants' allegations are as follows. [2] The Appellants allege they fear persecution in the Czech Republic and the Slovak Republic based on their ethnic Roma identity. The Appellants claim that in the Czech Republic and the Slovak Republic, they have been discriminated, persecuted, and even physically attacked, but were unable to obtain protection from the police or the government. [3] The PA left the Slovak Republic on XXXX XXXX XXXX 2016 for Canada and made a claim for refugee protection. The Associate and Minor Appellants departed the Czech Republic and entered Canada on XXXX XXXX, 2017 and made refugee claims at the port of entry. [4] The claims were joined and heard by the Refugee Protection Division (RPD) on January 13, 2020. The claims were dismissed on February 26, 2020 on the basis of credibility, discrimination versus persecution and the availability of state protection. The Appellants appeal to the Refugee Appeal Division (RAD). DECISION [5] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees. NEW EVIDENCE The evidence presented by the Appellants is partially accepted [6] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. an appellant could not reasonably have been expected in the circumstances to have brought to the RPD before the rejection of the claim. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [8] The Appellants submit the following new evidence: a. Article - "Europe's Roma Already Faced Discrimination. The Pandemic Made It Worse", The New York Times, July 6, 2020.3 b. Article - "COVID-19 Lockdown of Roma Villages Creates Unease in Slovakia", Balkan Insight, June 9, 2020.4 c. Article - "Pandemic: Roma at Receiving End of Racist Policing", EUobserver, May 4, 2020.5 d. Article - "Slovak Police Officer Said to Have Beaten Five Romani Children in Krompachy Settlement and Threatened to Shoot Them", Romea.cz, April 29, 2020.6 e. Article - "Video of Romanian Police Beating Roma Causes Outrage", Balkan Insight, April 24, 2020.7 f. Article - "Roma Still Face Discrimination in the Czech Republic, Says Amnesty International Report - Prague, Czech Republic", news.expats.cz, April 16, 20208 g. Article - "New Complaints Registered Concerning the Czech Republic", Council of Europe, February 21, 2020.9 Article "g" does not meet the requirements of subsection 110(4) [9] The Appellants submit that the new evidence arose after the rejection of the claims or was not reasonably available at the time of the rejection.10 A review of articles "a" through "f" indicates that they either pertain to the COVID-19 pandemic, which was first declared a pandemic by the World Health Organization after the rejection of the claims, or pertain to recent incidents that occurred after the rejection of the claims. Therefore, these articles meet the requirements of subsection 110(4) of IRPA. [10] However, article "g" was published prior to the rejection of the claims and the Appellants have not explained why it was not reasonably available earlier. I therefore do not accept that article "g" meets the requirements of subsection 110(4) of IRPA and it is rejected as new evidence. Articles "a" and "e" are not relevant under Singh/Raza, while articles "b", "c", "d" and "f" are accepted as new evidence [11] Regarding the Singh/Raza factors, the Appellants submit the new evidence is material and corroborative of their claims, and is relevant to nexus, persecution, probability of future risk and credibility.11 [12] Regarding Article "a," aside from passing references to the Slovak Republic or Europe as a whole, the article predominantly and specifically pertains to the situation of the Roma community in Bulgaria. As Bulgaria is not a country of reference in the Appellants' claims, I do not find the article is relevant and it is rejected as new evidence. [13] Article "b" pertains to the treatment of a Roma community in the Slovak Republic during the COVID-19 pandemic. As the article raises the suggestion of discrimination against the community, I accept that this article is relevant. As the article appears to have been published in a legitimate news source, I accept it is credible. As the COVID-19 pandemic was declared after the rejection of the claims, I also accept that this information was not previously available. Article "b" is accepted as new evidence. [14] Article "c" pertains to police use of excessive force against Roma children in the Slovak Republic during the COVID-19 pandemic. As the article raises the suggestion of discrimination against the community, I accept that this article is relevant. As the article appears to have been published in a legitimate news source, I accept it is credible. As the COVID-19 pandemic was declared after the rejection of the claims, I also accept that this information was not previously available. Article "c" is accepted as new evidence. [15] Article "d" also pertains to the same incident of excessive police force against Roma children in the Slovak Republic during the COVID-19 pandemic. As the article raises the suggestion of discrimination against the community, I accept that this article is relevant. As the article appears to have been published in a legitimate news source, I accept it is credible. As the COVID-19 pandemic was declared after the rejection of the claims, I also accept that this information was not previously available. Article "d" is accepted as new evidence. [16] Article "e" pertains to video footage of police assaulting a group of Roma men in Romania. As Romania is not a country of reference in the Appellants' claims, I do not find the article is relevant and it is rejected as new evidence. [17] Article "f" discusses the findings of a report by Amnesty International that Roma "still" face discrimination in the Czech Republic. As the article raises a suggestion of discrimination against the community, I accept that this article is relevant. As the article provides current information with respect to the stance of Amnesty International on this topic, I will accept that the article meets the requirement of newness. As the article appears to have been published in a legitimate news source, I accept it is credible. Article "f" is accepted as new evidence. [18] To summarize, Articles "b," "c," "d" and "f" are accepted as new evidence. Articles "a," "e" and "g" are rejected as new evidence. Oral Hearing [19] Subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) gives the RAD the discretion to hold an oral hearing if new evidence has been accepted that raises a serious issue with respect to the credibility of the appellant, that is central to the decision with respect to the appellant's claim and that, if accepted, would justify allowing or rejecting the appellant's claim.12 [20] The Appellants' request for an oral hearing is rejected on the basis that the accepted articles are not capable, by themselves, to justify allowing or rejecting the Appellants' claims. ANALYSIS [21] I have reviewed the RPD decision on a standard of correctness and conducted an independent assessment of all of the evidence.13 I acknowledge that when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their veracity. While I acknowledge that deference to the RPD is sometimes owed, in this case I have not deferred as the record is sufficient to allow me to apply the correctness standard. [22] The Appellants submit that the RPD erred as follows: a. Erred in its credibility assessment by: i. Suggesting that because the PA spoke Slovak at the hearing that his allegations were not true14 ii. Finding that the PA made an omission regarding his early school discrimination15 iii. Microscopically analysing the AA's testimony regarding her experience when giving birth16 iv. Faulting the AA for not remembering details of an incident at a restaurant17 b. Erred in its assessment of lack of cumulative discrimination amounting to persecution by: i. Diminishing the seriousness of a denial of proper education18 ii. Making unreasonable findings regarding the allegation of discrimination in employment19 iii. Making unreasonable findings regarding the allegation of discrimination in housing20 iv. Ignoring the cumulative effect of discrimination in education, housing and healthcare, etc.21 v. Focusing on the steps Slovak and Czech governments are taking to improve the plight of Roma instead of the operational adequacy of their efforts22 c. Erring in its assessment of state protection available from police and authorities by ignoring operational effectiveness23 RPD erred in its negative credibility findings i. Testifying in Slovak and Czech [23] The Appellants submit that the RPD erred in its negative credibility findings. First, the RPD decision mentioned the PA's allegation that he was not taught the Slovak language in school, which led to difficulties for him in finding employment and attending post-secondary school. The RPD noted however, that the PA used a Slovak interpreter during the hearing.24 The Appellants submit that the RPD seems to suggest that because the PA and AA spoke Slovak and Czech during the hearing instead of Romani, that their claims were not true.25 Furthermore, the Appellants submit that the fact that the PA speaks Slovak now does not contradict his assertion that he had difficulty entering the job market or furthering his education due to not being proficient in speaking Slovak many years ago. [24] Based on my independent assessment, I do not find that the RPD made a clear negative credibility finding against the Appellants as a result of testifying in Czech and Slovak during the hearing. However, to the extent that the RPD decision may intimate that the Appellants testifying in Slovak and Czech undermines their claims, I would find this to be an error. First, I note that the AA indicated in her Basis of Claim Form (BOC) that she speaks Czech.26 Second, the Appellants could not actually testify in Romani as the Romani interpreter at the hearing was of a different dialect (Romungro) whereas the Appellants' dialect is Lovari and the interpreter stated that there was only a 50-60% understanding between them.27 Finally, I note that the PA testified in 2014 he experienced a racist incident because he was unable to identify the name of a particular food item in the Slovak language.28 I find this supports the likelihood that the PA is not as proficient in Slovak as he could have been had he received formal education in the language. Overall, I find that the RPD erred to the extent that it cast doubt on the Appellants' credibility as a result of them testifying in Slovak or Czech. ii. Omission of bullying incident [25] The RPD drew a negative credibility inference against the Appellants due to an incident of the PA being bullied as a child as it was not written in his BOC.29 The Appellants submit the RPD erred by drawing a negative inference from the omission as the PA did not have counsel when he completed his BOC.30 Based on my independent assessment, I find that the RPD erred, for the following reasons. [26] First, the RPD erroneously states that the PA had legal assistance with compiling his BOC. However, the BOC actually indicates that the PA did not have any assistance from counsel.31 Second, the PA explained that he did not write this incident in his BOC because he was young when it happened so he did not think it was important. I find this is a reasonable explanation for a claimant who did not have legal assistance and alleges they have faced a multitude of similar incidents throughout their life, even if this one particular incident stands out more to him. Finally, before recounting this incident to the RPD, the interpreter informed the RPD member "[r]egarding his children in Canada. Important point that he wants to present to you, he doesn't want his children to go through the same persecution."32 That is, the PA's intention in recounting this incident was for the purposes of the claims of his children, the Minor Appellants, by trying to illustrate what he did not want the Minor Appellants to experience.33 However, at the time of compiling his BOC, the PA was only claiming refugee protection on his own behalf as the Minor Appellants were not yet in Canada. Therefore, I do not find that the omission of the incident from the PA's own BOC was material. Overall, I find the RPD erred in drawing a negative inference from the omission. iii. Omission of details regarding AA's hospital stay [27] The RPD drew a negative inference from an omission in the AA's BOC that she was "kicked out of the hospital prior to 24 hours after giving birth."34 The Appellants submit the RPD microscopically analysed the AA's testimony given that all of the other elements of the alleged discrimination in the hospital were contained in the BOC.35 [28] I have reviewed the AA's BOC and find that it provides a number of details of the alleged discriminatory treatment at the hospital, such as with respect to pain medication and facilities. Therefore, I find the RPD's negative inference from AA's elaboration at the hearing that she had to leave the hospital less than 24 hours later is microscopic, and that the RPD erred in this regard. iv. Report to police [29] Finally, the PA testified with respect to an incident in which he was thrown out of a restaurant due to his Roma ethnicity. The PA stated when they reported the incident to the police, they were told that the restaurant owner has the right to decide who should enter the establishment. The RPD decision states that when it asked the AA to confirm if the police had made such a statement, the AA indicated she did not recall. The RPD drew a negative credibility inference.36 The Appellants submit that the RPD erred by faulting the AA for her lack of recollection.37 [30] I have reviewed the transcript which indicates the AA stated "To be honest with you I don't recall exactly what was said by the police to us [emphasis added]".38 That is, the AA stated she did not remember "exactly" what was said. The RPD did not ask any follow-up questions either. Based on my independent assessment, I find that it was open to the AA to opt to not give a less than exact answer or erroneous testimony by proffering a guess, and therefore that the RPD erred by drawing a negative inference in this regard. Cumulative discrimination rises to the level of persecution [31] The RPD concluded that the discrimination faced by the Appellants in various spheres such as education, housing, healthcare and employment, did not cumulatively rise to the level of persecution. The Appellants submit the RPD erred in this regard by diminishing the seriousness of a denial of proper education, making unreasonable findings regarding the allegation of discrimination in employment, housing and healthcare and ignoring their cumulative effect.39 Also, they submit that the RPD erroneously focused on the steps Slovakian and Czech governments are taking to improve the plight of Roma instead of the operational adequacy of their efforts.40 i. The Appellants face discrimination in the sphere of employment [32] It was the PA's evidence that although he looked for work in the Czech and Slovak Republics, he was routinely unsuccessful and discriminated against because of his Roma ethnicity.41 Based on my review, the country conditions documentation indicates the following. a. Slovak Republic [33] Although the Slovakian government has adopted measures to decrease Roma unemployment, according to the United States (US) Department of State's Country Reports on Human Rights Practices for 2019, a Slovakian government report showed that Romani jobseekers were less likely to benefit from labor market measures.42 Activists allege that this is because employers refuse to hire Roma.43 Furthermore: an estimated 70 percent of Roma from socially excluded communities were unemployed. NGOs [nongovernmental organizations] working with Roma from such communities reported that, while job applications by Roma were often successful during the initial phase of selection, in a majority of cases employers rejected the applicants once they found they were Roma.44 [34] A Response to Information Request (RIR)45 compiled by the Immigration and Refugee Board of Canada (IRB) also indicates that the European Commission against Racism and Intolerance (ECRI) attributes the high unemployment rate among Roma to "poor support in job search by [the] labour office; programmes of vocational training not suited for long-term unemployed persons like the Roma; and the reluctance of employers to employ Roma despite wage subsidies". According to sources, in a test of workplace bias in 2014 using fictitious resumes, half with Roma names and half with non-Roma names, "the non-Roma ones were asked for an interview 40 percent of the time, while the ones with Roma names were asked for an interview 18 percent of the time."46 b. Czech Republic [35] While the Czech government has adopted measures to reduce Roma unemployment, a Bertelsmann Stiftung's Transformation Index (BTI) report from 2020 states that "[e]xcept for the Roma population, there is no general labor market exclusion due to ethnicity, religion or gender [emphasis added]".47 Furthermore, that "a structured support system intended to allow marginalized groups to overcome their initial disadvantages has been insufficient. This has been the most significant problem concerning the Roma minority's access to education and employment."48 Another report states that: three out of four Roma looking for work in the last five years reported experiencing discrimination and 41% said that they have experienced such treatment at work by their employers or colleagues. EU-FRA [European Union Agency for Fundamental Rights] noted that the share of Roma not in work or education or further training is six times higher than the general population. [endnotes omitted]49 [36] Regarding the AA, who was enrolled in a special school in the Czech Republic, the country conditions documents state "about a half of today's generation of Roma mothers came from special or practical schools. This has an impact on the Roma women's chances in the labour market and also on their prospect of asserting their children's rights to a discrimination-free education [emphasis added]".50 c. Conclusion on employment [37] Overall, I find that the country conditions documents, as well as the Appellants' own evidence, indicate that the Appellants as Roma would face discrimination in the sphere of employment in the Slovak and Czech Republics. ii. The Appellants face discrimination in the sphere of education [38] According to the Appellants' evidence, both the AA and PA were enrolled in schools for children with learning disabilities and received a minimal and subpar education. Based on my review, the country conditions information indicates as follows. a. Slovak Republic [39] The IRB Research Directorate noted in a June 2016 report that there is a problem with Roma children being segregated in separate classrooms, separate schools, or placed in "special schools" including those for children with disabilities despite the ban on ethnic segregation guaranteed by the Anti-discrimination Act and the School Act.51 Although the Slovak government adopted an amendment to the School Act aimed at eliminating segregation in the school system, the European Roma Rights Centre (ERRC) and the Center for Civil and Human Rights (Poradna) described the amendment as "highly insufficient," and believed that the changes would not secure equal education for Roma "if not accompanied by any concrete and sustainable de-segregation policies and measures".52 Amnesty International (AI) similarly stated that "[w]hile the amendment prioritizes integration in mainstream schools and provides financial incentives for schools educating pupils from disadvantaged backgrounds, it does not contain any provisions for eliminating ethnic discrimination against Roma."53 [40] The RIR also states that, according to the European Commission against Racism and Intolerance (ECRI), misplacement of Roma in special schools "seriously affects Roma children's future education and employment opportunities."54 A report by the Slovak Ombudsperson similarly indicated that "once a child is placed in a special class or special school, it is 'practically impossible' to complete a full vocational or general/technical secondary education".55 According to Amnesty International (AI), despite a 2012 court ruling, which found that Slovakia discriminated against Roma children by segregating them in different classes, segregation continued in 2015, and was becoming "more severe" in part due "to the introduction of 'container schools'--schools made from cheaper materials resembling 'shipping containers'--which were being placed in Roma settlements as a 'quick fix to the problem of low school capacities and the high number of incoming, mainly Roma, pupils'".56 AI noted that the effect of placing these container schools directly in Roma settlements was "ethnic segregation" and cutting Roma children off from the rest of society.57 According to sources "non-Roma families sometimes withdraw their children from schools attended by Roma children or enrol them in non-Roma schools further away".58 [41] The Bertelsmann Stiftung's Transformation Index (BTI) report from 2020 states: a structured support system intended to allow marginalized groups to overcome their initial disadvantages has been insufficient. This problem has been greatest for the Roma community, who still struggle to access education and employment. The issue of special schools is a long-term weakness within Slovakia's education system, which insufficiently addresses the special needs of Roma children. Slovak law prohibits discrimination and segregation in education, but many Roma children are still placed in special schools and classes for children with intellectual disabilities. Moreover, the European Commission has opened proceedings against Slovakia for breaching the Racial Equality Directive.59 [42] Also recently, a report released by Amnesty International in 2020 indicates that the European Commission escalated infringement proceedings against Slovakia for breaching the European Union's (EU's) equality legislation in October (2019).60 Moreover, The Commission gave the government two months to take measures to address the systematic discrimination and segregation of Roma children in education; otherwise, it could decide to refer the matter to the Court of Justice of the EU. In November [2019], the Committee on Economic, Social and Cultural Rights (CESCR) called on the government to take immediate steps to increase the integration of Roma children who are currently in special schools and classes into mainstream education.61 b. Czech Republic [43] According to a report from the Czech Women's Lobby, discrimination of Roma children in the education system takes three main forms: "1) over-representation of Roma pupils in the so-called practical elementary schools (ie. primary schools for pupils with mild intellectual disability), 2) segregation of Roma in mainstream education and 3) other forms of differential treatment in mixed mainstream schools."62 [44] Recently, a 2020 report from Amnesty International for 2019 indicates, "[a]ccording to government figures, while the proportion of Roma among pupils in primary schools in 2018/2019 was 3.7%, the proportion of Roma among pupils educated under reduced educational programmes in the 2018/2019 school year is 29.1%."63 [45] Also, while the Czech government has drafted and adopted measures to reduce Roma discrimination in education, according to the recent 2020 US Department of State Country Reports on Human Rights Practices for 2019 for the Czech Republic, in September 2019 the Office of the Public Defender of Rights (ombudsperson) and several NGOs, including Amnesty International, "criticized an amendment to the Ministerial Decree on Special Education that decreased the maximum number of special assistants per classroom."64 Additionally, "[o]bservers asserted the amendment hindered progressive steps toward inclusive education."65 [46] Finally, according to a report from the Research Directorate of the IRB, Amnesty International noted that Roma children "rarely have a fighting chance of progressing in life. They are trapped in a vicious cycle of poverty and marginalization".66 c. Conclusion on education [47] Overall, I find that the country conditions documents as well as the Appellants' own evidence indicate that the Appellants as Roma face discrimination in the sphere of education in the Slovak and Czech Republics. iii. Appellants face discrimination in the sphere of housing [48] The PA and AA indicate they were raised in exclusively Roma communities.67 The AA says her family of eight people resided in a two-room house without hot water. The PA says his home had no hot water, and the neighbourhood lacked streetlights, sidewalks, stores or parks. Based on my review, the country conditions information indicates as follows. a. Slovak Republic [49] While the Slovak government has drafted and adopted measures to reduce Roma discrimination in housing, according to a Response to Information Request from 2016, sources state that as of 2013, 11 percent of Roma households did not have access to running water and 188 settlements in 152 municipalities were not connected to a public water pipeline.68 Moreover, according to the same sources, 45 percent of Roma dwellings were not connected to a sewage system, cesspool or domestic wastewater treatment equipment and many Roma settlements contained "environmental hazards, including toxic industrial waste, rubbish tips, floods and intermingling of waste and drinking water".69 Walls and barriers had also been erected to segregate Roma neighbourhoods from non-Roma neighbourhoods.70 [50] The RIR further states that the housing situation for Roma in the Slovak Republic is exacerbated by the fact that while many Roma built their homes a long time ago on state-owned land with approval from authorities, after 20 years of decentralization and privatization, many of these areas are now owned by individuals, companies or municipalities, who can initiate eviction proceedings against the Roma who live there.71 b. Czech Republic [51] While the Czech government has drafted and adopted measures to improve Roma housing standards, according to the 2020 US Department of State Country Reports on Human Rights Practices for 2019 for the Czech Republic: [a]pproximately one-third of Roma lived in socially excluded communities. While the law prohibits housing discrimination based on ethnicity, NGOs stated some municipalities discriminated against certain socially disadvantaged groups, primarily Roma, and based their decisions not to provide housing on the allegedly bad reputation of Roma.72 [52] Also, [a] 2017 amendment to the law addressing poverty, which was intended to solve housing problems, had the opposite effect in some cases. The amendment reduced government housing subsidies in areas that cities designated as undesirable for a variety of reasons, including poor living conditions and high crime. Some cities began to use this designation as an instrument to push Roma and other low-income citizens into a city's periphery. [emphasis added]73 [53] Finally, the Public Defender of Rights reported that Roma have practically no access to housing on the free residential market.74 c. Conclusion on housing [54] Overall, I find that the country conditions documents as well as the Appellants' own evidence indicate that the Appellants as Roma face discrimination in the sphere of housing in the Slovak and Czech Republics. iv. Appellants face discrimination in the sphere of healthcare [55] The AA claims that she was differentially treated at a Czech hospital when she gave birth as compared to non-Roma women.75 Based on my review, the country conditions information indicates as follows. a. Slovak Republic [56] The RPD concluded that, with respect to healthcare, the Appellants did not give evidence that the PA was discriminated against in the Slovak healthcare system.76 The Appellants submit the PA did not testify with respect to being treated differentially because he was never asked this, and he had no counsel at the hearing.77 [57] Based on my independent review of the transcript, I note that in describing an incident where the PA sought medical treatment after being attacked, he stated "maybe I was a good candidate for hospitalisation but they did not admit me."78 It is unclear however whether or not the PA intended to elaborate on this point because the RPD member did not ask the PA why he felt this was the case. Rather, the RPD stated "Don't give me maybe's [sic], please do not speculate, okay? Because I cannot make a finding of fact on speculation."79 In fact, the RPD specifically instructed the Appellants earlier in the hearing that "when I ask a question I want only the answer to my question"80 but then did not ask the PA if he had been treated differentially in the Slovak healthcare system. Overall, to the extent that the RPD relied on its belief that the Appellants had not put forward evidence of being treated differentially in the Slovak healthcare system in reaching its conclusion that the discrimination did not rise to the level of persecution, I find this was an error. [58] With respect to the country conditions information regarding healthcare in the Slovak Republic, I acknowledge that the Slovakian government has drafted and adopted measures to improve Roma health. For example, a 2014 report of the European Commission against Racism and Intolerance (ECRI) states that the Slovak government implemented a number of awareness-raising activities regarding healthcare-related issues such as vaccination, birth-control measures, patient's rights and insurance.81 This programme was carried out by social workers in Roma settlements, acting as health mediators between Roma communities and local hospitals.82 [59] However, a 2016 Response to Information Request83 from the IRB Research Directorate states: REF [Roma Education Fund] indicates that "since 1990, the overall health status of the Roma population has been deteriorating". According to ECRI, many Roma experience "poor health conditions," caused by "reduced access to health insurance, lower child vaccination rates, difficult access to medical services and affordability of healthcare". [citations omitted] Also, sources in 2015 and 2016 indicated that many Roma experience health consequences as a result of the poor sanitation conditions in their communities.84 Furthermore, it was reported in May 2015 that according to Slovakia's Health Minister, health risks that Roma face include chickenpox, hepatitis A and other infectious diseases.85 According to another report from 2016, Roma women and children face discriminatory treatment by medical staff and segregation in hospitals, including in ... [some] maternity wards ... where Roma women and girls are kept in different rooms and have to use separate bathrooms than non-Roma patients. The same sources report that many Roma women and girls have been subject to verbal abuse and violence, such as slaps, by medical staff. [citations omitted]86 [60] Therefore, I find the reported improvements noted by the ECRI in 2014 have not significantly ameliorated the significant problems with the healthcare provided to Roma citizens. [61] Furthermore, recent evidence suggests that discrimination in healthcare may be continuing. According to an article accepted as new evidence in this appeal, Roma settlements were put into lockdown by the Slovak government during the COVID-19 pandemic in 2020 notwithstanding that the rate of infection was below the 10% threshold required for lockdown.87 While there are mixed opinions regarding the government's motivation for the lockdown and whether it may have been necessary, the Slovak Ombudswomen also noted that "the adopted solution has brought along a negative stigmatisation of all Roma people in Slovakia and I am convinced that there was a way to avoid it."88 b. Czech Republic [62] A 2015 report by the European Roma and Travellers Forum states, Roma health status is inferior compared to non-Roma. When taking into account two basic health indicators, the difference is striking: Roma life expectancy is ten years lower than the general population and Roma infant mortality rate is at least twice as high as the national average. The main reasons are the lack of adequate governmental policies, the high level of poverty, but also the social exclusion of the community in general. Very often, this gap in health status is linked to their poor living conditions: lack of hygiene and access to water, overcrowding in flats, no private bathrooms. Poorer health status: There is a lack of available data on Roma health. Self-reported incidence/prevalence of chronic diseases such as headache or migraine, depression, respiratory problems and diabetes are higher than in the general population. Prevalence of Tuberculosis amongst Roma is approximately ten times higher than in the non-Roma population. Infectious diseases, in particular hepatitis and bacillary dysentery, have spread among Romani populations because of bad living conditions. In an overall assessment of the incidence of Hepatitis A, an estimated 30 % of all cases reported in the country in 2009 involved Roma. In 2010, poor sanitary conditions were the cause of a high incidence of Type A hepatitis in certain Roma communities in the Czech Republic. Those most affected were the Romani populations with over 50 % of all reported cases of Hepatitis A involving Roma. The situation was so serious that it required the intervention of the Chief Public Health Officer of the Czech Republic. As a result of social exclusion, addictive substance use, such as alcohol, hard or soft drugs and tobacco, is more widespread among the Roma community. [footnotes omitted]89 c. Conclusion on healthcare [63] Overall, I find that the country conditions documents as well as the Appellants' own evidence indicate that the Appellants as Roma face discrimination in the sphere of healthcare in the Slovak and Czech Republics. Conclusion on discrimination versus persecution [64] Guidance from the United Nations High Commissioner for Refugees (UNHCR) Handbook90 and Canadian jurisprudence indicates that discrimination can amount to persecution cumulatively when there are a number of discriminatory acts which take place in a general atmosphere of insecurity and the discriminatory acts are substantially prejudicial to the person concerned, including serious restrictions on the right to earn a livelihood or to access normally available educational facilities. In the Appellants' case, as a result of the actions of the governments of the Slovak and Czech Republics, the PA and AA were raised in marginalized neighbourhoods, deprived of an adequate education which had a direct impact on their employability, and have no assurances with respect to the quality of the healthcare they may receive. As Amnesty International succinctly summarizes, and as quoted above, the PA and AA were deprived of "a fighting chance of progressing in life. They are trapped in a vicious cycle of poverty and marginalization."91 I find the cumulative acts of discrimination rises to the level of persecution. I find this extends to the Minor Appellants as well. I am mindful of the strides and measures being made by the Slovak and Czech Republics to improve the plight of the Roma. However, the effectiveness of these policies has yet to be adequately measured and reported on. Therefore, overall, based on the currently available country conditions and the Appellants' evidence, I find that the RPD erred in concluding that the Appellants would not face cumulative discrimination amounting to persecution. [65] I find the PA and AA face a serious possibility of persecution in the Slovak Republic on the basis of their Roma ethnicity. I find the AA and Minor Appellants face a serious possibility of persecution in the Czech Republic on the basis of their Roma ethnicity. The Appellants have rebutted the presumption of state protection [66] The Appellants' evidence was that the police had previously failed to protect them. For example, the PA was beaten in 2014 and when he attempted to report this incident to the police, he was told they were not interested in his complaint.92 Furthermore, the police failed to even arrive in response to a march by skinheads in his colony.93 This is consistent with the documentary evidence which states as follows. i. Slovak Republic [67] Regarding the Slovak Republic, a 2020 report from Amnesty International states, Allegations of excessive use of force by the police against Roma persisted, alongside a lack of independent scrutiny. In June, the Public Defender of Human Rights criticized the failure of the police inspectorate to investigate allegations that police had used excessive force during an operation in the Roma settlement of Moldava nad Bodvou in June 2013, resulting in injuries to over 30 individuals including children.94 [68] According to a 2020 report by the US Department of State regarding 2019, In January, Interior Minister Denisa Sakova (Smer-SD) announced the opening of a special police operations center tasked with monitoring the situation in the eastern Slovak town of Krompachy through a network of more than 50 closed-circuit television cameras installed predominantly in parts of the town inhabited by Roma. The minister claimed the project was necessitated by what she called "unadaptable Roma" living in the town. NGOs criticized the interior minister, releasing an open letter claiming that Sakova's labelling of Romani persons as "unadaptable" criminalized the entire ethnic group.95 [69] A 2020 report from BTI also states "The most vulnerable segment of society is still the Roma population, which is frequently subject to mistreatment by the state authorities (including the police). [emphasis added]"96 [70] Finally, an article in the Appellants' new evidence accepted in this appeal recounts an incident in 2020 where five small Roma children were beaten by a Slovak police officer.97 ii. Czech Republic [71] According to a Response to Information Request, "Concerning both hate crime and hate speech, the SIMI [Association for Integration and Migration] representative stated that underreporting is an 'ongoing problem,' 'since victims are often from Roma and migrant communities which lack trust towards police investigation, action and protection.'"98 Also sources reported that "in 2016, a man had fired shots into the air at a Roma children's summer camp and the police did not come to the scene".99 iii. Conclusion on state protection [72] I find the country conditions evidence as well as the Appellants' evidence demonstrate that the police and state authorities in the Czech and Slovak Republics are unwilling to protect the Appellants as Roma citizens. I find that the presumption of state protection has been rebutted with clear and convincing evidence. There is no internal flight alternative [73] Finally, as the conditions facing the Appellants as Roma exist throughout the Slovak and Czech Republics, I find there is no viable internal flight alternative available to the Appellants. CONCLUSION [74] The appeal is allowed. Pursuant to paragraph 111(1)(b) of IRPA, I substitute my own decision that the Appellants are Convention refugees. (signed) K. Qureshi K. Qureshi January 25, 2021 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, subsection 110(4). 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 3 Exhibit P-2, Appellants' Record, at pp. 50-55. 4 Exhibit P-2, Appellants' Record, at pp. 56-64. 5 Exhibit P-2, Appellants' Record, at pp. 65-67. 6 Exhibit P-2, Appellants' Record, at pp. 68-70. 7 Exhibit P-2, Appellants' Record, at pp. 71-72. 8 Exhibit P-2, Appellants' Record, at pp. 73-74. 9 Exhibit P-2, Appellants' Record, at pp. 75-76. 10 Exhibit P-2, Appellants' Record, Written Statement, at p. 81. 11 Exhibit P-2, Appellants' Record, Written Statement, at p. 81. 12 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, subsection 110(6). 13 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 14 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 92, para. 16. 15 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 92, para. 17. 16 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 94-95, paras. 22-24. 17 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 96, para. 27. 18 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 93, para. 19. 19 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 93, para. 20. 20 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 94, para. 21. 21 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 95-97, paras. 25, 28; pp. 104-106, paras. 48-51. 22 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 97-100, paras. 29-36; pp. 102-103, paras. 41-45; pp. 107-109, paras. 52, 54, 56-57. 23 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 100-101, paras. 37-39; p. 104, para. 47; p. 107, para. 53. 24 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 11, para. 41. 25 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 92, para. 16. 26 Exhibit RPD-1, RPD Record, Exhibit 2.2, at p. 60. 27 Transcript of RPD hearing, January 13, 2020, at p. 5, line 20. 28 Transcript of RPD hearing, January 13, 2020, at p. 23, lines 29-31. 29 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 12, paras. 42-43. 30 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 92, para. 17. 31 Exhibit RPD-1, RPD Record, Exhibit 2.1, at p. 54. 32 Transcript of RPD hearing, January 13, 2020, at p. 9, lines 34-35. 33 Transcript of RPD hearing, January 13, 2020, at pp. 30-31. 34 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 16-17, paras. 66-67. 35 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 94-95, paras. 22-24. 36 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 18, paras. 73-74. 37 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 96, para. 27. 38 Transcript of RPD hearing, January 13, 2020, at p. 40, lines 11-12. 39 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 93-94, paras. 19-21; pp. 95-97, paras. 25, 28; pp. 104-106, paras. 48-51. 40 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 97-100, paras. 29-36; pp. 102-103, paras. 41-45; pp. 107-109, paras. 52, 54, 56-57. 41 Exhibit RPD-1, RPD Record, at p. 57, para. 9. 42 National Documentation Package (NDP) for Slovakia (1 September 2020), item 2.1, at p. 29. 43 Ibid. 44 Ibid. 45 NDP for Slovakia (1 September 2020), item 13.4. 46 Ibid. 47 NDP for the Czech Republic (1 September 2020), item 1.5, at p. 20. 48 Ibid., at p. 27. 49 NDP for the Czech Republic (1 September 2020), item 2.6, at p. 6. 50 NDP for the Czech Republic (1 September 2020), item 5.5, at p. 16. 51 NDP for Slovakia (1 September 2020), item 13.4, at pp. 7-10. 52 Ibid. 53 Ibid. 54 Ibid. 55 Ibid. 56 Ibid. 57 Ibid. 58 Ibid. 59 NDP for Slovakia (1 September 2020), item 1.7, at p. 24. 60 NDP for Slovakia (1 September 2020), item 2.2, at p. 70. 61 Ibid. 62 NDP for the Czech Republic (1 September 2020), item 5.5, at p. 5. 63 NDP for the Czech Republic (1 September 2020), item 2.2, at p. 23. 64 NDP for the Czech Republic (1 September 2020), item 2.1, at p. 20. 65 Ibid. 66 NDP for the Czech Republic (1 September 2020), item 13.5. 67 Exhibit RPD-1, RPD Record, Exhibit 2.1, at p. 58 and Exhibit 2.2, at p. 64. 68 NDP for Slovakia (1 September 2020), item 13.4, at p. 5. 69 Ibid. 70 Ibid. 71 Ibid. 72 NDP for the Czech Republic (1 September 2020), item 2.1, at p. 20. 73 Ibid. 74 NDP for the Czech Republic (1 September 2020), item 2.6, at p. 7. 75 Exhibit RPD-1, RPD Record, Exhibit 2.2, at p. 65. 76 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 18, para. 71. 77 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 96, para. 26. 78 Transcript of RPD hearing, January 13, 2020, at p. 25, lines 11-12. 79 Ibid., at p. 25, lines 14-15. 80 Transcript of RPD hearing, January 13, 2020, at p. 12, lines 45-46. 81 NDP for Slovakia (1 September 2020), item 13.7, at p. 29. 82 Ibid. 83 NDP for Slovakia (1 September 2020), item 13.4. 84 Ibid. 85 Ibid. 86 Ibid. 87 Exhibit P-2, Appellants' Record, at p. 64. 88 Exhibit P-2, Appellants' Record, at p. 64. 89 NDP for the Czech Republic (1 September 2020), item 13.9, at p. 5. 90 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV. 4, at paras. 53-54. 91 NDP for the Czech Republic (1 September 2020), item 13.5. 92 Exhibit RPD-1, RPD Record, Exhibit 2.1, at p. 57. 93 Ibid. 94 NDP for Slovakia (1 September 2020), item 2.2, at p. 69. 95 NDP for Slovakia (1 September 2020), item 2.1, at p. 23. 96 NDP for Slovakia (1 September 2020), item 1.7, at p. 14. 97 Exhibit P-2, Appellants' Record, at p. 65. 98 NDP for the Czech Republic (1 September 2020), item 4.2, at p. 11. 99 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-08526 TC0-08527 / TC0-08528 / TC0-08529 TC0-08530 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français