Canada (Minister of Citizenship and Immigration) v. Bednarikova et al., 2015 FC 293

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: December 18, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 293;(2015), 472 F.T.R. 274 (FC)

Can. (M.C.I.) v. Bednarikova (2015), 472 F.T.R. 274 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.032

The Minister of Citizenship and Immigration (applicant) v. Sona Bednarikova, Filip Bednarik and Tomas Bednarik (respondents)

(IMM-4954-13; 2015 FC 293)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Bednarikova et al.

Federal Court

Russell, J.

March 9, 2015.

Summary:

The respondents, a mother and her two sons, were citizens of the Czech Republic. The Refugee Protection Division of the Immigration and Refugee Board accepted the respondents' application to be deemed Convention refugees under s. 96 of the Immigration and Refugee Protection Act. The Minister applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugee and persons in need of protection - Persecution - Protection of country of nationality or citizenship (internal flight alternative) - The respondents (Bednarikova and her two sons) were citizens of the Czech Republic - Bednarikova said that she was abused by her ex-husband in the Czech Republic and that the domestic violence continued in Canada - She said that her family was also persecuted because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board determined that the respondents were Convention refugees - The Board found that Bednarikova would be unable to access state protection if she returned to the Czech Republic - As a result, the presumption of state protection was rebutted - The Minister applied for judicial review - The Federal Court dismissed the application - The court stated that "It is unclear from the Decision why the Board says the Principal Respondent 'would not be able to access state protection' in the Czech Republic. It could be, as the Applicant argues, that the Board concludes that the Principal Respondent's subjective psychological state prevents her from doing this; or it could be because, as the Respondents argue, the Czech Republic does not provide protection for vulnerable Roma women who are victims of domestic abuse. To resolve this ambiguity, the CTR [Certified Tribunal Record] suggests to me that the Board was fully aware that it had to address the objective availability of protection and not just the Principal Respondent's subjective ability to access protection ... This is the correct test for state protection. The Board certainly could have made its application of the legal test clearer in the reasons, but on the basis of the record as a whole, I am not convinced a reviewable error has occurred" - See paragraphs 26 to 31.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugee and persons in need of protection - Persecution - Protection of country of nationality or citizenship (internal flight alternative) - The respondents (Bednarikova and her two sons) were citizens of the Czech Republic - Bednarikova said that she was abused by her ex-husband in the Czech Republic and that the domestic violence continued in Canada - She said that her family was also persecuted because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board determined that the respondents were Convention refugees - The Board found that Bednarikova would be unable to access state protection if she returned to the Czech Republic - As a result, the presumption of state protection was rebutted - The Minister applied for judicial review - The Federal Court dismissed the application - The court was not convinced that the Board ignored evidence in reaching its conclusion - The court stated that "The Applicant says the Board erred in failing to explain how it addressed the evidence that the Principal Respondent called the police after her most recent assault in Canada. The Applicant says this is evidence of the Principal Respondent's ability to access state protection in the Czech Republic and should have been discussed. ... I do not see how the Principal Respondent's willingness to call the police in these circumstances could lead to any conclusions regarding the Principal Respondent's ability to call the police in the Czech Republic, where her uncontested evidence is that she did not receive police assistance when she sought it" - See paragraphs 32 to 34.

Aliens - Topic 1334

Admission - Refugee Protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The Refugee Protection Division of the Immigration and Refugee Board accepted the respondents' application to be deemed Convention refugees under s. 96 of the Immigration and Refugee Protection Act - The Minister applied for judicial review, raising two issues: 1. Did the Board apply the correct test for state protection; and 2. Did the Board ignore evidence in concluding that the principal respondent would be unable to access protection in the Czech Republic - The Federal Court stated that "The first issue raises the question of whether the Board applied a proper legal test. This Court has affirmed that when the jurisprudence has established a clear legal test, it is not open to the Board to apply a different test. .... The Board's application of the test to the facts before it remains reviewable on a standard of reasonableness as it involves a question of mixed fact and law ... The second issue raises a question of whether the Board ignored evidence. This is a factual inquiry and is reviewable on a standard of reasonableness" - See paragraphs 12 to 16.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 12].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 12].

Cosgun v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 225; 2010 FC 400, refd to. [para. 13].

Koky v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 980; 2011 FC 1407, refd to. [para. 13].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 13].

Ruszo v. Canada (Minister of Citizenship and Immigration) (2013), 440 F.T.R. 106; 2013 FC 1004, refd to. [para. 14].

Buri v. Canada (Minister of Citizenship and Immigration) (2014), 446 F.T.R. 57; 2014 FC 45, refd to. [para. 14].

Hinzman et al. v. Canada (Minister of Citizenship and Immigration) (2006), 290 F.T.R. 8; 2006 FC 420, affd. (2007), 362 N.R. 1; 2007 FCA 171, refd to. [para. 14].

Rusznyak et al. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 99; 2014 FC 255, refd to. [para. 14].

Bari v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 356; 2014 FC 862, refd to. [para. 14].

Malveda v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 306; 2008 FC 447, refd to. [para. 15].

Flores et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 212; 2011 FC 359, refd to. [para. 15].

Aguilar v. Canada (Minister of Citizenship and Immigration) (2013), 437 F.T.R. 168; 2013 FC 809, refd to. [para. 15].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 18].

Johnson v. Canada (Minister of Citizenship and Immigration) et al., [2010] F.T.R. Uned. 191; 2010 FC 311, refd to. [para. 18].

Farias v. Canada (Minister of Citizenship and Immigration), 2008] F.T.R. Uned. 411; 2008 FC 578, refd to. [para. 18].

Martinez v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 204; 2006 FC 343, refd to. [para. 18].

Varga v. Canada (Minister of Citizenship and Immigration) (2005), 275 F.T.R. 286; 2005 FC 617, refd to. [para. 18].

Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.), refd to. [para. 22].

Ortiz v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 767; 2002 FCT 1163, refd to. [para. 22].

Precectaj v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 329; 2010 FC 485, refd to. [para. 23].

Simpson v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 579; 2006 FC 970, refd to. [para. 24].

Tatarski v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 429; 2010 FC 660, refd to. [para. 24].

Chinchilla et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 332; 2005 FC 534, refd to. [para. 24].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 27].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 33].

Counsel:

Daniel Engel, for the applicant;

Howard C. Gilbert, for the respondents.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the applicant;

Howard C. Gilbert, Toronto, Ontario, for the respondents.

This application was heard on December 18, 2014, at Toronto, Ontario, before Russell, J., of the Federal Court, who delivered the following decision on March 9, 2015.