TB5-08676

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 File No. / N° de dossier de la SAR : TB5-08676 TB5-08677 TB5-08678 TB5-08679 TB5-08680 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 4, 2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal D. Clifford Luyt Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (Principal Appellant), his spouse, XXXX XXXX (Secondary Appellant), and their children, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX collectively referred to as the Appellants, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. The Principal Appellant is the designated representative for the Minor Appellant. The Appellants have not submitted new evidence in support of their appeal and do not request an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to set aside the decision of the RPD and find them to be Convention refugees. In the alternative, the Appellants ask the RAD to remit the matter to a different member of the RPD. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellants are Convention refugees. This appeal is allowed. Background [3] The Appellants alleged before the RPD that, upon return to the Slovak Republic (also referred to as Slovakia), they will be harmed by racists due to their Romani (also referred to as Roma) ethnicity. They also alleged that they will face various forms of discrimination. [4] The Appellants' applications for refugee protection were heard on May 14, 2014 and May 29, 2015. By a decision dated June 12, 2015, the RPD rejected the claims, finding that the Appellants experienced discrimination in the Slovak Republic which did not reach the level of persecution. The RPD also found that the Appellants failed to rebut the presumption of state protection with clear and convincing evidence. [5] The Appellants submit that the RPD erred in its determinations of persecution and state protection. ANALYSIS Role of the RAD What is the role of the RAD in considering an appeal against a decision of the RPD? [6] The Appellants refer to the decision of the Federal Court in Huruglica1 and submit that in principle it is settled that the RAD conducts its own assessment of whether the appellant is a Convention refugee or a person in need of protection. They further submit that the RAD may defer to the RPD on questions of credibility where the RPD is in a better position than the RAD to make the findings concerned, however in general the RAD does not defer to the RPD but makes its own independent assessment of the merits of the claim. [7] The RAD notes that the Federal Court of Appeal has indicated that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law; and this translates into an application of the correctness standard of review.2 The Court held that, with respect to findings of fact (and mixed fact and law), which raises no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. It goes on to indicate that after carefully considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether the RPD erred. The Court also stated that having done the above, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.3 [8] Considering the recent jurisprudence, the RAD will carefully consider the RPD decision and carry out its own analysis of the record to determine whether the RPD erred. After having done the above, the RAD will provide a final determination or refer the matter back to the RPD for redetermination. ANALYSIS OF THE MERITS OF THE APPEAL Credibility [9] The RPD drew some negative credibility inferences from anomalies in the Appellants' evidence. The Appellants submit that while the RPD made some negative credibility findings against them, it did not make a general finding of lack of credibility against them. They note that the RPD indicated in its reasons that the Appellants have suffered occasional attacks by unknown racist individuals. They argue that this means that while the RPD doubted that the Principal Appellant had been attacked by a far right politician in 2008 and it did not find it credible the Secondary Appellant's evidence of the medical treatment she received after being attacked by skinheads in 2012, it did not doubt that the attacks occurred. They further argue that in the absence of a finding to the contrary, it must be assumed that the RPD accepted that the Minor Appellant had been transferred to a XXXX school for the XXXX even though he was not XXXX, and without any consultation with, or the consent of, his parents. [10] The Appellants submit that the RPD erred in finding that it could not conclude that the Secondary Appellant was subjected to involuntary sterilization because it was uncorroborated. They note that the sworn testimony of a refugee claimant is presumed true unless there is good reason to doubt it, and testimony cannot be found lacking in credibility merely because it is not corroborated. They also note that the RPD did not make a general finding of lack of credibility against the Secondary Appellant and gave no reason for not accepting her sworn testimony, which was supported by the Basis of Claim Form (BoC) narrative, on this issue. Further, they refer to documentary evidence from 2011 and 2012 indicating that forced sterilization of Romani women still occurs in the Slovak Republic. [11] The Appellants' arguments have merit. The RAD notes that while the RPD drew negative credibility inferences from the Principal and Secondary Appellants' "changing testimony" regarding two incidents, it did not conclude that the incidents did not occur. In fact, the RPD acknowledged that the Principal and Secondary Appellants had been assaulted by racist individuals in its analysis of treatment amounting to persecution. The Court in Addo stated that, where there is no clear adverse finding of credibility, a recitation in the reasons of the claimant's testimony will be deemed to be the Board's findings of the relevant facts.4 [12] The RAD agrees with the RPD drawing a negative inference from the inconsistencies in the Principal Appellant's evidence regarding a far-right politician being one of his attackers in 2008. One would expect a refugee claimant to provide consistent evidence about a significant event. However, there is insufficient evidence or reason to find that the attack did not occur. Even if there are inconsistencies or exaggerations, the RPD must still go on to assess the evidence which is found to be credible. Further, the RPD was not wrong to draw a negative inference from the Secondary Appellant's inconsistent evidence regarding medical treatment she received after the 2012 attack. At the hearing, the Secondary Appellant changed her answer regarding medical treatment she received after the 2012 attack, after the Principal Appellant made a comment to her. One would expect that the person seeking medical treatment would not need the assistance of a spouse to answer questions about the medical treatment she received. However, once again, there is insufficient evidence or reason to doubt that the 2012 attack occurred. [13] The RPD found, on a balance of probabilities, that XXXX broke his XXXX in a fall and not as a result of an attack by classmates as alleged. It based the finding on the fact that the medical report regarding the injury stated that XXXX sustained the injury in a fall and not as a result of an attack. Also contributing to the RPD's finding was inconsistent evidence regarding the school XXXX was attending at the time of the attack. The RAD concurs with the RPD finding regarding the circumstances surrounding the incident that caused XXXX injuries in 2013. The medical report indicates that XXXX fell and injured XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2013.5 The medical report from the XXXX XXXX Hospital is extensive and detailed. It would be reasonable to expect it to indicate that XXXX sustained his injuries from an attack if it was reported to the hospital as alleged. Furthermore, the Appellants indicate in their BoC narrative that XXXX was transferred to a XXXX school XXXX months after the XXXX XXXX, 2013 attack whereas the Principal Appellant indicated at the hearing that the attack occurred at the XXXX school and XXXX injuries prevented him from attending school for XXXX months. It would be reasonable to expect the Appellants to provide consistent evidence regarding the XXXX XXXX, 2013 incident and their failure to do so undermines the credibility of the alleged incident. The RAD finds, on a balance of probabilities, that XXXX broke XXXX XXXX on XXXX XXXX, 2013 in a fall and not as a result of an attack by classmates. [14] The RPD indicated in its reasons that although the Secondary Appellant stated in her BoC that her tubes were tied after the birth of her second child, she did not present any medical evidence concerning this. It also indicated that it was unable to determine on a balance of probabilities whether the procedure was performed and whether it was performed without her knowledge or consent. As submitted by the Appellants, the sworn testimony of a refugee claimant is presumed to be true unless there is good reason to doubt it, and testimony cannot be found lacking in credibility merely because it is not corroborated. The RAD notes that the Appellants indicated in their BoC narrative that the Secondary Appellant had her tubes tied without her knowledge in 2002. The RPD did not question the Secondary Appellant about this at the hearing. In the RAD's opinion, it would have been prudent for the RPD to question the Secondary Appellant about efforts she made to obtain documentation to corroborate her allegation that she was subjected to involuntary sterilization. However, since it did not, the RPD was wrong to make a finding due to lack of corroborating medical documentation. The RPD may make an adverse credibility finding on a refugee claimant's lack of effort to obtain documents that are reasonably available to corroborate a central element of a claim; however not solely on a refugee claimant's lack of corroborating documents. [15] Considering all the evidence, the RAD finds that the Appellants are generally credible. For the reasons noted above, on a balance of probabilities, a far right politician was not involved in the attack on the Principal Appellant in 2008, the Secondary Appellant did not seek medical attention after the 2013 attack and XXXX broken XXXX in 2013 was not a result of an attack by his classmates. However, the RAD finds the remainder of the Appellants' evidence to be credible and trustworthy and consistent with country condition documents. Persecution [16] The RPD found that the Appellants experienced discrimination which does not reach the level of persecution. The Appellants submit that based on their submissions on credibility noted above it follows that the RPD accepted that the Principal Appellant had been attacked by four skinheads in 2008; the Secondary Appellant was attacked and brutally beaten by three skinheads in 2012; the Minor Appellant was placed in a XXXX school for the XXXX without consent or consultation even though he was not XXXX; and the Appellants were subjected to persistent racial insults among other abuse. [17] The Appellants note that while the RPD stated that they were responsible for not taking advantage of educational opportunities, it failed to note the involuntary transfer of the Minor Appellant to a XXXX school. They refer to documentary evidence indicating that Romani children are segregated in Roma only schools or classes and they are disproportionately channelled into XXXX schools designed for children with XXXX XXXX XXXX or XXXX needs. [18] The Appellants submit that the RAD should accept, though the RPD did not, that the Secondary Appellant was subjected to involuntary sterilization at the time of XXXX birth in 2002. They further submit that the RPD's failure to mention or consider that the Secondary Appellant's evidence of forced sterilization was supported by the documentary evidence was an error. They submit that, based on the totality of the evidence, the RAD should find on a balance of probabilities, that the Secondary Appellant was forcibly sterilized in 2002. The Appellants submit that forced sterilization, in and of itself, and particularly when carried out for discriminatory ethnic reasons as in Slovakia, constitutes persecution. It follows, they argue, that had the RPD not erroneously failed to find that the Secondary Appellant had experienced forced sterilization it would necessarily have found that they suffered past persecution as Roma in Slovakia. [19] The Appellants submit that the RPD erred in failing to take into account the severe discrimination they suffered in housing. They note that the RPD was entirely silent on the issue of housing. They note that the RPD acknowledged problematic housing situations for Roma but did not relate these to their personal experiences. They submit that this was an error that caused the RPD to fail to take into account a significant factor in their claim to have suffered persecution on a cumulative basis. [20] The Appellants submit that, even on the evidence which it accepted, the RPD erred in finding that they had suffered discrimination and not persecution. They argue that the RPD unacceptably minimized the violence they experienced by describing it as occasional and carried out by unknown persons. The Appellants submit that the overriding error committed by the RPD was in failing to properly assess the cumulative harassment or indeed persecution they suffered, in order to determine whether it gave rise to a well-founded fear of persecution. They submit that the RAD should consider the cumulative effect of the evidence referred to above, that they argue the RPD accepted, plus the forced sterilization of the Secondary Appellant and the inhumane housing conditions to which they were subjected, and conclude that they had, at the very least, established a well-founded fear of persecution in Slovakia on a cumulative basis. [21] The Federal Court of Appeal in Yaliniz indicated that even if there are inconsistencies or exaggerations, the panel must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants.6 Considering the Appellants' evidence and the credibility findings above, the RAD finds the following evidence to be credible. * The Secondary Appellant was forcibly sterilized in 2002; * The Principal Appellant was physically attacked by four skinheads in 2008 resulting in significant injuries - police involvement yielded no results; * The Secondary Appellant was physically attacked by three skinheads in 2012 resulting in significant injuries - police involvement yielded no results; * In or about 2013, the Minor Appellant was placed in a XXXX school for the XXXX even though he was not XXXX; * The Appellants were subjected to persistent racial insults; * XXXX XXXX XXXX and XXXX experienced discrimination and harassment at school resulting in impeded educational progress; * The Principal Appellant and XXXX were unable to obtain sustained employment due to their ethnicity; * The Appellants were unable to obtain adequate housing and squatted in a wooden shack with no electricity; [22] The RAD notes the following excerpts from the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status,7 52. Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case, including the subjective element to which reference has been made in the preceding paragraphs. The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary. 53. In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on "cumulative grounds". Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context. [23] Considering the credible evidence noted above and the guideline on persecution, the RPD was wrong to find that the discrimination experienced by the Appellants did not reach the level of persecution. The Appellants faced discrimination in many areas including education, employment and housing. They faced physical assaults from racists. The documentary evidence noted below in the state protection analysis clearly establishes the existence of serious problems of racism and discrimination against the Roma population in the Slovak Republic. Efforts by the government to protect Roma citizens from persecution have proven to be ineffective. Further, state actors are often complicit in its persecution of Roma citizens. Moreover, the Appellants presented personal evidence which tied events of discrimination to each of them. The RAD finds that the credible evidence noted above, when considered together, amounts to persecution. State protection [24] The RPD found that the Appellants failed to rebut the presumption of state protection with clear and convincing evidence. The Appellants submit that a deficiency in the RPD's analysis stems from the fact that, despite acknowledging evidence of state participation in persecution of Slovak Roma, it failed to factor the role of the state in this case to its consideration of state protection. They submit that the RPD failed to note that the authorities had transferred XXXX to a XXXX school for XXXX children without his parents' consent, when he was not XXXX. Further, the Appellants submit, because the RPD did not accept that the Secondary Appellant had been subjected to forced sterilization, it failed to factor this significant incident of state persecution, into its analysis of state protection. [25] The Appellants indicate that a particularly disturbing aspect of the RPD's state protection analysis is that it directly contradicts previous decisions made by the same RPD panel member on the same issue. They refer to one example of the panel member's previous decisions and argue that it cannot be said that there was a significant change in country conditions since the previous decision and the decision on their claims were two months apart. They note that there is no explanation in the RPD's state protection analysis in their case as to why the evidence it had previously relied on was no longer persuasive. [26] The Appellants submit that little of the documentation cited by the RPD in this case established the operational adequacy of protection for Roma persons. They note that the RPD faulted them for not going higher up with their complaints of racist violence and police inaction, yet the evidence it relied on indicated that there were no independent mechanisms dealing with complaints against the police. They argue that the occasional arrests of violent racists, with no indication if any convictions were registered, did not begin to outweigh the extensive evidence of impunity for such persons, and indeed for police, as well as of official racism against the Roma. [27] The Appellants refer to the United States Department of State and European Roma Rights Centre reports on the Roma in Slovakia and submit that in light of this and other evidence in the record, it defies reason for the RPD to have dismissed the systemic failures of the police and judiciary in Slovakia, on the basis that no state can guarantee perfect protection to its citizens. They submit that, not only was the RPD's decision at variance with other decisions based on a similar or identical evidentiary record, but it was contradicted by the weight of that evidence. The Appellants submit that the RAD should find that their inability to obtain police protection was fully and overwhelmingly supported by the documentary evidence and that the involvement of the state in their persecution rendered any reasonable prospect of their accessing protection illusory. [28] The RAD has considered the Appellants' credible evidence of discrimination and physical attacks against them in the Slovak Republic. It has also considered the documentary evidence regarding the situation of the Roma in the Slovak Republic. The RAD does not concur with the RPD in its conclusion on state protection. The Appellants' credible evidence demonstrates that adequate state protection was not reasonably available to them in areas of education, employment, and housing. It was also not reasonably available to them in response to physical attacks they endured at the hands of racists. Their evidence is clear that the state did not assist them in overcoming obstacles in obtaining proper education. An example of this is XXXX placement in a XXXX school for the XXXX when there was no evidence he was XXXX. This is reflective of a system that marginalizes individuals due to their ethnicity. Further, the lack of educational opportunities for the Appellants further impeded their ability to qualify for many types of employment. The Secondary Appellant's credible evidence indicating that she was forcibly sterilized is supported by country condition documents on this issue. [29] Documentary evidence is clear that persons of Romani ethnicity face mistreatment and abuse in the Slovak Republic and the state is unable and unwilling to provide them with adequate protection. The United States Department of State reports that a notable human rights problem in the Slovak Republic is the continued societal discrimination and violence against Roma. Also reported is that widespread discrimination against Roma continued in employment, education, healthcare, housing, and loan practices; and Roma continued to face discrimination in accessing a wide variety of commercial services, including restaurants, hair salons, and public transportation.8 The report also documents incidents of racially motivated attacks on the Roma and events by racist groups intended to intimidate the Roma. [30] The state's view of the Roma minority is reflected in the report that there were instances of public officials at every level defaming minorities and making derogatory comments about Roma.9 With respect to housing, the state's unwillingness to offer protection to the Roma minority is demonstrated by the authorities forcibly evicting Romani inhabitants, demolishing their improvised housing, and the blocking them from obtaining construction permits or purchasing land.10 [31] The Commissioner for Human Rights states that police may fail to take testimony from a Romani witness or to thoroughly investigate a complaint. Some police officers are biased against Roma, particularly in Eastern Slovakia and in rural areas. Police may ignore complaints or fail to adequately deal with incidents against Roma. Several sources report on police mistreatment of Roma, including racist attacks by police and abuse of Roma suspects during arrest and while in custody.11 This evidence is not only indicative of a lack of adequate state protection for the Roma in the Slovak Republic but it also demonstrates that the authorities mistreat and abuse the Roma with impunity. [32] The RAD finds that the Appellants have provided credible personal evidence which demonstrates, by the preponderance of probabilities, that the Slovak Republic would not be able to afford them adequate protection. The country condition documents support their personal evidence. The RAD therefore concludes that the Appellants have rebutted the state protection presumption. Summary [33] The Appellants are citizens of the Slovak Republic and of Romani ethnicity. They have been found to be generally credible. They have suffered various forms of discrimination in the Slovak Republic amounting to persecution. They have not received adequate protection from the state in the areas of education, employment, housing, and personal safety. Documentary evidence is clear and overwhelming that individuals of Romani ethnicity face severe discrimination in all areas of life in the Slovak Republic and protection mechanisms are ineffective for this ethnic minority. As a result of inadequate state protection and a lack of a viable internal flight alternative, the RAD finds, on a balance of probabilities, the Appellants have satisfied the burden of establishing a serious possibility of persecution should they return to the Slovak Republic. The RAD, therefore, concludes that the Appellants have established a well-founded fear of persecution under section 96 of the IRPA. CONCLUSION [34] Pursuant to subsection 111(1)(b) of the Immigration and Refugee Protection Act, the Refugee Appeal Division sets aside the determination of the Refugee Protection Division and substitutes its determination that the Appellants are Convention refugees. This appeal is allowed. (signed) "M. Pettinella" M. Pettinella May 4, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93, para. 78. 3 M.C.I. v. Huruglica, para. 103. 4 Addo, Samuel v. M.E.I. (F.C.A., no. A-614-89), Mahoney, Hugessen, Gray, May 7, 1992. 5 Exhibit RPD-1, RPD's Record, at p. 359. 6 Yaliniz, Tacir v. M.E.I. (F.C.A., no. A-648-87), Marceau, Teitelbaum, Walsh, March 8, 1988. 7 The Office of the United Nations High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Reissued Geneva, December 2011 8 Exhibit RPD-1, RPD's Record, at pp. 287, 295. 9 Exhibit RPD-1, RPD's Record, at p. 295. 10 Exhibit RPD-1, RPD's Record, at p. 295. 11 Exhibit RPD-1, at pp. 275-286, National Documentation Package (NDP) for Slovakia 30 May 2014, item 13.2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08676 TB5-08677 TB5-08678 TB5-08679 TB5-08680