Toronto, Ontario, October 4, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-7572-05
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDERS AND ORDERS
[1] The Applicants in the present Applications are partners who, on their Pre Removal Risk Assessments (PRRA), presented the same evidence of fear of persecution (s.96 of IRPA) and risk (s.97) as Roma should they return to Poland. The PRRA Officer who rendered the decision on each Application gave the same reasons for rejection. As a result, the reasons which follow are applicable to both Applications and all references are to the Application Record and Tribunal Record on IMM-7570-05.
[2] In the decisions under review, the PRRA Officer cited, at length, the decision of the Refugee Protection Division (RPD) with respect to each Applicant in which their application for protection was rejected. In its decision, the RPD made a negative credibility finding with respect to the Applicants’ evidence of personalized persecution in Poland as Roma, and, therefore, the evidence of individualized persecution was not considered on the issue of prospective risk. Indeed, in the result, it is important to note that the RPD did not conduct an independent analysis of prospective s.96 or s.97 risk to the Applicants in Poland purely because of their Roma ethnicity. This very well might be a reviewable error, but as I understand it, it was not advanced in any subsequent proceeding.
[3] In making their PRRA Applications, the Applicants submitted cogent evidence of a fear of persecution and risk of violence on the basis of their ethnicity should they return to Poland. The PRRA Officer accepted this evidence as “new evidence” even though it predated the RPD hearing and no specific finding allowing for its admission on the record as made under s.113 of the IRPA. Nevertheless, the evidence submitted was admitted to the evidentiary record on the PRRA Applications upon which the decisions under review were rendered.
[4] Excerpts from the evidence submitted read as follows:
The report details ERRC [European Roma Rights Centre] concerns in Poland, including:
Racially motivated violence: Roma in Poland have been frequent targets of skinhead attacks, racially motivated violence and harassment by non-Romani persons. Reporting such violence and harassment to the authorities frequently led to further attacks and threats against the Romani victims. As a result, many Roma live in a climate of fear that pervades all aspects of their lives, from their interaction with authorities to their ability to access public spaces and services and to participate fully in the lives of the communities in which they live.
Failure to protect Roma and denial of justice for Romani victims of racially motivated crimes: The Polish police and judiciary have been slow to react to reports of crimes against Roma and to acknowledge the racial motivation of such crimes. When investigations into racially motivated crimes were launched, they were frequently stalled or discontinued altogether, often with the justification that the authorities did not find sufficient evidence to issue arrest warrants, indictments or judicial sentences – even in cases in which the alleged perpetrators had been identified by victims and/or witnesses.
Police abuse: Police and other authorities have frequently abused members of the Romani communities by engaging in outright violence, unlawful arrests, searches, seizure of property, harassment or biased investigation. When reporting racially motivated crimes to the police, victims sometimes find themselves charged with crimes they did not commit.
(Applicant’s Record, pp.46-47 )
[...]
The [“Never Again”] Association claims that the government “does not offer the Roma adequate protection against racist violence. Openly racist groups operate freely despite the provisions of the Constitution and the penal code,” and suggests that the most “violent, fascist groups registered as political parties are: “Boleslaw Tejkowski’s Polish National Community-Polish National Party (PWN-PSN), Janusz Bryczkowski’s Polish National Front (PFN) and Adam Gmurczk’s National Polish Revival (NOP) (16 Nov. 1999).
[...]
Stankiewicz stated that in the case of assault, roma are unlikely to turn to the court system or approach prosecutors or police because they feel that such approaches will be useless, noting that examples such as that in Ochotnica (see above), discourage Roma from trusting the authorities (13 Jan. 2000). He is of the opinion that officials are as susceptible to stereotypes about Roma as the population in general and that Roma victims who go through these channels are often made to feel as if they are the guilty party (ibid.).
Kwiatkowski stated that in his view, in most cases of attacks against Roma, the policy would simply try to brush aside the incident and not initiate an investigation as it would be too labour-intensive and too costly (18 Jan. 2000). He believes that the police do not trust Roma witnesses and that ethnic Poles would by highly unlikely to come forward as witnesses against ethnic Poles who attack a Roma (ibid.). For these reasons, there are very few cases that make it past the initial investigation stage (ibid.). Andrasz also believes that police are not very active in such cases and that investigations tend to become stalled, preventing court cases from being pursued (19 Jan. 2000). In the last two years, Kwiatkowski could think of only one incident in particular – the 1998 arson attach in Bytom – that was pursued all the way through the court systems, although he thought there might have been perhaps one other (18 Jan. 2000).
(Application Record, pp.87-88)
[5] In each PRRA Application, the Applicants argued that they face a prospective risk in Poland of murder, racially motivated violence directed specifically against the Roma minority, frequent attacks by skinheads, and repeated harassments and physical assaults (Application Record, p.31). In each decision under consideration, the PRRA Officer acknowledges the evidence and argument submitted by the Applicants (Tribunal Record, p. 3).
[6] As a result, the PRRA process engaged by the Applicants called upon the PRRA Officer to fairly deal with the evidence and argument presented; that is, to make specific determinations as to whether, simply because of their Romany ethnicity, the Applicants would suffer more than a mere possibility of persecution and, on a balance of probabilities, risk to life or cruel and unusual treatment or punishment, should they return to Poland. In my opinion, the PRRA Officer failed to meet this obligation.
[7] The decisions rendered do not address the evidence and arguments presented by the Applicants. After repeating the findings of the RPD, the PRRA Officer engages in a description of the democratic nature of Poland, and the due diligence efforts being made within the country to deal with widespread discrimination against Roma, including laws prohibiting violence. However, the PRRA Officer does not engage in an analysis of the reality of the effectiveness of the due diligence efforts on the issue of risk advanced by the Applicants for determination.
[8] The PRRA Officer did correctly find that, as Poland is a democratic state, the presumption of state protection required the Applicants to present clear and convincing evidence in rebuttal. However, in my opinion, the evidence presented by the Applicants as rebuttal required the PRRA Officer to make a determination as to whether the presumption had indeed been rebutted, and if not, why not. This requirement was not met. Indeed, on state protection this is the only analysis provided:
There is insufficient objective evidence to indicate that the Polish government condones discrimination against the Roma. The evidence indicates that the government is taking action to improve the position of the Roma within the Polish society.
The applicant has not discharged his obligation that state protection would not be available to him upon return to Poland.
No government that makes any claims to democratic values or protection of human right can guarantee the protection of all of its citizens at all times (M.E.I. v. Villafranca, (F.C.A.)(1992) p.3 (quicklaw)).
He has not provided clear and convincing evidence of the state’s inability to provide protection.
Counsel referred to documentation, which indicates that Romas experience difficulties living in Poland. However, there is also documentary evidence, which indicates that steps have been taken by the Polish government to address minority issues.
Upon review of all the evidence before me, with respect to Section 96 of the Immigration and Refugee Protection Act, I am not persuaded to arrive at a different conclusion of the RPD. The applicant and counsel have not addressed satisfactorily the issues that the RPD had.
(Tribunal Record, pp.10-11)
[9] As noted, a factor in the reasons provided is the determination of the RPD. About the RPD’s decision, early in the decisions rendered, the PRAA Officer comments as follows:
The risk that the applicant/counsel identified had been dealt with at the refugee hearing.
With respect to Section 96 of the Immigration and Refugee Protection Act, the applicant had an opportunity to submit new evidence that would persuade me to arrive at a different conclusion of the RPD.
(Tribunal Record, p.6)
[10] To recap, the RPD’s decision is devoid of any prospective s.96 or s.97 determination because the Applicants evidence of their own experiences with ethnic based violence was not believed. By making the comment just quoted, it appears that the PRAA Officer misconceived the nature of the Applicants’ PRAA Applications, and this misconception played into the decisions rendered. The Applicants’ PRAA evidence and argument is based purely on their prospective risk as Roma, without reference to their past experience as Roma. It appears that this is a point that the PRRA Officer did not understand. In the result, it is clear that the obligation to deal with the evidence and argument was not met.
[11] I find that the void found in the PRAA Officer’s decisions can be fairly characterized as a denial of natural justice; the Applicants were entitled to a reasoned decision on state protection on the evidence which they advanced, and which they did not receive. As a result, I find that the decisions were rendered in reviewable error.
ORDER
IMM-7570-05
Accordingly, for the reasons provided, the PRRA decision under review is set aside and the matter is referred back to a differently constituted panel for redetermination.
“Douglas R. Campbell”
Judge
ORDER
IMM-7572-05
Accordingly, for the reasons provided, the PRRA decision under review is set aside and the matter is referred back to a differently constituted panel for redetermination.
“Douglas R. Campbell”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7570-05
IMM-7572-05
STYLE OF CAUSE: ZENON BRZEZINSKA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
BARBARA BRZEZINSKA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 3, 2006
REASONS FOR ORDER: CAMPBELL, J.
APPEARANCES:
Clifford D. Luyt FOR APPLICANT
SOLICITORS OF RECORD:
Clifford D. Luyt FOR APPLICANT
Waldman & Associates
Barristers and Solicitors
Toronto, Ontario
John H. Sims, QC FOR RESPONDENT
Deputy Attorney General of Canada