Cervenakova v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Crampton, J.
• Citation: (2010), 381 F.T.R. 74 (FC),2010 FC 1281
• Date: 29 November 2010

Cervenakova v. Can. (M.C.I.) (2010), 381 F.T.R. 74 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. DE.053

Ivana Cervenakova, Sarka Cervenakova and Andrea Cervenakova (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1798-10; 2010 FC 1281)

Indexed As: Cervenakova v. Canada (Minister of Citizenship and Immigration)

Federal Court

Crampton, J.

December 13, 2010.

Summary:

The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity. The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim. The applicants applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review, asserting that they had a reasonable apprehension that the Board was biased against claimants for refugee protection who were from the Czech Republic and of Roma ethnicity in light of comments made by the Minister of Citizenship, Immigration and Multiculturalism - The applicants submitted that over a dozen comments reported to have been made by the Minister between April and August 2009, together with his announcement of a visa restriction on foreign nationals from the Czech Republic in mid-July 2009, demonstrated that he had a strategy of reducing the level of acceptance of refugee claims by Roma from the Czech Republic - The Federal Court dismissed the application - The court reviewed the statements and found that the statements, together with the imposition of the visa requirement that was announced by the Minister, would not, individually or collectively, provide reasonable and right minded persons with serious or substantial grounds upon which to apprehend: (i) that the Minister had intended to influence the manner in which Board members conducted their assessment of individual refugee claims from the Czech Republic; or (ii) that Board members would actually be influenced by the Minister's statements and his announcement of the visa requirement - The Minister appeared to have been very careful to underscore that decisions were made by the Board, which he noted was independent, on the basis of the facts in each case - See paragraphs 40 to 51.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review, asserting that they had a reasonable apprehension that the Board was biased against claimants for refugee protection who were from the Czech Republic and of Roma ethnicity in light of their view that the Board had a recent history of bias against Roma and a history of attenuated independence - These allegations were based on, inter alia, claims made by former Board member Fournier that he was subjected to influence, in late 2003 and 2004, to reject the applications of Hungarian Roma refugee claimants - The Federal Court dismissed the application - The evidence that the Board had a historical bias against Czech and Hungarian refugee claimants was tenuous, at best, particularly considering that: (i) Fournier's claims dated back over six years; (ii) he was involved in a serious dispute with the Board involving his own conduct; and (iii) no other evidence of bias by the Board against Hungarian or Czech claimants had emerged in the intervening period or been adduced by the applicants - See paragraphs 52 to 54.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review, asserting that they had a reasonable apprehension that the Board was biased against claimants for refugee protection who were from the Czech Republic and of Roma ethnicity in light of their view that the Board had a recent history of bias against Roma and a history of attenuated independence - These allegations were based on, inter alia, the applicants' assertion that Board members were dependent on the Minister of Citizenship, Immigration and Multiculturalism to be appointed and reappointed to the Board - The Federal Court dismissed the application - This was simply a bald assertion - The applicants had adduced no other evidence of: (i) historical or current bias by the Board or any of its members against Hungarian or Czech refugee claimants; or (ii) attenuated independence on the part of the Board or any of its members - Board members were subject to a Code of Conduct - The Board member had to be presumed to be impartial, absent serious grounds for concluding that a reasonable and informed person, viewing the matter realistically and practically, would believe that he was not impartial - It could not simply be inferred, solely from the political nature of the Minister's comments, that they gave rise to a reasonable apprehension of bias on the part of the Board member - See paragraphs 55 to 60.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review, asserting that they had a reasonable apprehension that the Board was biased against claimants for refugee protection who were from the Czech Republic and of Roma ethnicity in light of the decline in the success rate of refugee claimants from the Czech Republic - The applicants asserted that the decline in the level of acceptance of Czech refugee claimants from above 90% to virtually zero strongly substantiated their allegations of bias on the part of the Board - The Federal Court dismissed the application - After conducting a fact-finding mission of conditions faced by the Roma in the Czech Republic, the Board released two issue papers - The court found that the content of the Board's issue papers provided an entirely plausible explanation for the decline in the level of acceptance of refugee claimants from the Czech Republic, from the last quarter of 2008 to the second quarter of 2010 - See paragraphs 61 to 68.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review, asserting that they had a reasonable apprehension that the Board was biased against claimants for refugee protection who were from the Czech Republic and of Roma ethnicity in light of the corruption of the Board members - The evidence adduced by the applicants in support of this very serious allegation consisted of nine news articles spanning the period 1992 to 2010 and a 2007 posting that appeared on the website of the Conservative Party of Canada - The news articles reported on: "(i) the convictions or firings of four former Board members for criminal or inappropriate conduct; (ii) the removal of another Board member from her job; (iii) investigations into the conduct of four other Board members; (iv) the charging and eventual acquittal of another Board member; (v) the appointment of another Board member after he pleaded guilty to five counts of professional misconduct as a lawyer; (vi) the appointment of a Board member who was the former Chief of Staff to former Haitian President Bertrand Aristide; (vii) the political nature of appointments to the Board and the fact that some appointees were poorly qualified for the job; and (viii) the pressure that some former Board members felt to approve applications by refugee claimants." - The Federal Court dismissed the application - Keeping in mind that there were a very large number of members of the Board during the period covered by the above-mentioned news articles, the court found the applicants' sweeping allegations that the Board as an organization was "corrupt" and "rotten" to be entirely unfounded and bordering on unprofessional - Moreover, there was absolutely nothing in those articles that would support the bias allegations that the applicants had raised - See paragraphs 69 to 71.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review, asserting that the Board erred in failing to conduct an appropriate analysis under s. 97 of the Immigration and Refugee Protection Act (IRPA) - The applicants submitted that once the Board accepted their identities as citizens of the Czech Republic, of Roma ethnicity, the Board was obliged to conduct an analysis under s. 97, yet failed to do so - The Federal Court dismissed the application - The Board did not fail to analyze the applicants' claims under s. 97 - Rather, it analyzed them together with their claims under s. 96, which was permissible - The Board's integrated assessment focused on two issues, both of which were relevant to the claims made by the applicants under each of ss. 96 and 97 of the IRPA - These issues were credibility and state protection - In this context, it was not necessary for the Board to conduct a separate analysis of the applicants' claims under ss. 96 and 97, as those claims and the evidence adduced could comfortably be assessed in an integrated fashion - The Board's decision made it clear that the applicants' claims and supporting evidence were assessed in terms of the distinct requirements of each of ss. 96 and 97 - On the particular facts of this case, it was reasonably open for the Board to conduct a single integrated assessment of the applicants' claims under ss. 96 and 97 and to dispose of the applicants' claims under s. 97 - The Board did not err in this regard - See paragraphs 73 to 79.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review, asserting that the Board failed to assess whether Roma in the Czech Republic were discriminated against in the provision of health care services and whether this would put the applicants, especially Sarka, who had a disability, at risk under s. 97 of the Immigration and Refugee Protection Act (IRPA) - The Federal Court dismissed the application - The Board did assess this risk, even though it had previously stated that it did not believe that any of the significant events that the principal applicant alleged happened to her and her children, actually happened - In addition, the Board found that the Czech government was making very serious strides to overcome various types of discrimination, including discrimination in the provision of social services - Accordingly, the Board did not in fact fail to assess this issue, as asserted by the applicants - Having regard to the particular facts of this case, the Board's assessment of this issue was not unreasonable - See paragraph 92.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - [See Aliens - Topic 1322 ].

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection -Grounds - Well-founded fear of persecution - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review, asserting that the Board erred by failing to analyze whether they would be unable to earn a living in the Czech Republic - The applicants also asserted that the Board failed to consider the various forms of discrimination and persecution suffered by other Roma in the Czech Republic and to assess whether such discrimination might be sufficient to establish the well-foundedness of their fear of persecution - The Federal Court dismissed the application - Having rejected the applicants' claims of persecution on the basis of its finding that the principal applicant was generally lacking in credibility, the Board was not obliged to consider whether the applicants might face sufficient discrimination in this regard to have a well-founded fear of persecution, as contemplated by s. 96 of the Immigration and Refugee Protection Act (IRPA) - Further, this was not a type of risk contemplated by s. 97 of the IRPA - It was also not a risk that was mentioned in the applicants' PIF, in their respective narratives or in their testimony before the Board - See paragraph 90 and 91.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality or citizenship (internal flight alternative) - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review, asserting that the Board erred by ignoring or selectively referring to much of the evidence which contradicted its conclusion that they had failed to rebut the presumption of state protection - They further asserted that the Board: (i) completely failed to explain why that evidence was rejected; (ii) failed to reasonably explain the evidentiary basis upon which its conclusions were made; (iii) failed to assess the extent to which efforts of the Czech government had been effective in improving the situation of the Roma and in protecting them; and (iv) made an unreasonable assessment of the evidence as a whole - The Federal Court dismissed the application - The Board devoted four pages of its decision to the assessment of the issue of state protection - Given the Board's findings, and the fact that the Board specifically addressed and rejected on credibility grounds each of the claims made by the applicants in their PIF statements and testimony, the court was satisfied that it was reasonably open to the Board to conclude that the applicants had failed to rebut the presumption of state protection - Contrary to the applicants' submissions, it was readily apparent from the findings made by the Board that the Board did in fact: (i) explain the basis for its conclusion on the issue of state protection; and (ii) assess the extent to which the efforts that had been taken by the Czech government had been effective in assisting Roma and in providing adequate state protection to them - The Board's decision was reasonable - See paragraphs 80 to 89.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review, asserting that i. comments made by the Minister of Citizenship, Immigration and Multiculturalism during the period April 2009 to August 2009 gave rise to a reasonable apprehension that the Board was biased against their claims for protection; ii. the Board erred by failing to conduct an appropriate analysis under s. 97 of the Immigration and Refugee Protection Act; iii. the Board erred by misapprehending or ignoring evidence and by unreasonably assessing the evidence as a whole; and iv. the Board erred by failing to consider whether the various incidents of discrimination that they or similarly situated persons experienced cumulatively amounted to persecution - The Federal Court held that the issue that the applicants had raised with respect to whether the Board's decision was made in breach of the duty of fairness, including the requirement of impartiality, was reviewable on a standard of correctness - The remaining issues that the applicants had raised were reviewable on a standard of reasonableness - See paragraphs 35 to 37.

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - The applicants sought refugee status in Canada, claiming that they were persecuted in the Czech Republic because of their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee claim - The applicants applied for judicial review - As a preliminary matter, the applicants asserted that Crampton, J., should recuse himself on the grounds that he had a pre-disposition to deny the application because (i) he denied the application for judicial review in Dunova v. Canada (Minister of Citizenship and Immigration) (FC 2010); and (ii) he denied the application for leave and judicial review in Cervanak v. Canada (Minister of Citizenship and Immigration) (FC 2010) - Both cases involved allegations of bias that were similar to the allegations being made in this proceeding - The Federal Court, per Crampton, J., refused to recuse himself - The mere fact that Crampton, J., rejected similar arguments in two previous cases involving different applicants was not a sufficient basis upon which to conclude that an informed person, viewing the matter realistically and practically, and having thought the matter through, would apprehend that he was biased in relation to the issue that the applicants in this case had raised in respect of bias by the Board - To establish the existence of "substantial grounds" for a reasonable apprehension of bias, one had to go further and demonstrate that a judge "has been influenced by some extraneous or improper consideration", had made "inappropriate declarations showing a state of mind that sways judgment in order to succeed", or had prejudged one or more important issues - That was not the case here - There was a big difference between being biased and exercising, even consistently, one's judicial responsibilities based on one's interpretation of the law - See paragraphs 18 to 34.

Cases Noticed:

Dunova v. Canada (Minister of Citizenship and Immigration) (2010), 367 F.T.R. 89; 2010 FC 438, refd to. [para. 19].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 22].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 23].

Kozak et al. v. Canada (Minister of Citizenship and Immigration) (2006), 349 N.R. 309; 267 D.L.R.(4th) 54; 2006 FCA 124, refd to. [para. 24].

Geza v. Canada (Minister of Citizenship and Immigration) - see Kozak et al. v. Canada (Minister of Citizenship and Immigration).

Almrei v. Canada (Minister of Citizenship and Immigration) et al. (2007), 316 F.T.R. 49; 2007 FC 1025, refd to. [para. 28].

Gabor v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 767; 2010 FC 1162, refd to. [para. 28].

Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. et al. (2001), 196 N.S.R.(2d) 118; 613 A.P.R. 118; 2001 NSCA 112, dist. [para. 30].

R. v. Bertram, [1989] O.J. No. 2123 (H.C.), dist. [para. 30].

R. v. Yalahow, [1998] N.W.T.J. No. 67 (S.C.), dist. [para. 30].

Children's Aid Society (Halifax) v. M.B. and R.W. (1988), 85 N.S.R.(2d) 34; 216 A.P.R. 34 (Fam. Ct.), dist. [para. 30].

R. v. Bird (J.) (1997), 30 O.T.C. 305 (Gen. Div.), dist. [para. 30].

Arsenault-Cameron et al. v. Prince Edward Island, [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1, appld. [para. 31].

Ahani v. Canada (Minister of Citizenship and Immigration) et al. (1998), 159 F.T.R. 252 (T.D.), affd. (2000), 261 N.R. 40; 7 Imm. L.R.(3d) 1 (F.C.A.), refd to. [para. 32].

Arthur v. Minister of Employment and Immigration, [1993] 1 F.C. 94; 147 N.R. 288 (F.C.A.), refd to. [para. 32].

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; 291 D.L.R.(4th) 577; 64 C.C.E.L.(3d) 1; 2008 SCC 9, refd to. [para. 35].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 35].

Velez et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 620; 2010 FC 923, refd to. [para. 36].

Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2001), 211 F.T.R. 219; 2001 FCT 1043, affd. [2003] 3 F.C. 761; 307 N.R. 201; 2003 FCA 178, refd to. [para. 57].

Van Rassel v. Royal Canadian Mounted Police, [1987] 1 F.C. 473; 7 F.T.R. 187 (T.D.), refd to. [para. 57].

Fehr v. National Parole Board et al. (1995), 93 F.T.R. 161 (T.D.), refd to. [para. 60].

Bertillo v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1617 (T.D.), refd to. [para. 60].

Bouaouni v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 717; 2003 FC 1211, dist. [para. 75].

Sida et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 526; 2004 FC 901, refd to. [para. 75].

Kandiah et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 158; 2005 FC 181, refd to. [para. 76].

Brovina v. Canada (Minister of Citizenship and Immigration) (2004), 254 F.T.R. 244; 2004 FC 635, refd to. [para. 76].

Nagaratnam v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 129; 2010 FC 204, refd to. [para. 78].

Kilic v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 52; 2004 FC 84, dist. [para. 78].

Kaleja et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 153; 2010 FC 252, dist. [para. 82].

Rachewiski et al. v. Canada (Minister of Citizenship and Immigration) (2010), 365 F.T.R. 1; 2010 FC 244, refd to. [para. 85].

Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (F.C.A.), refd to. [para. 86].

Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.), refd to. [para. 86].

Anaya Ayala v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 866; 2008 FC 1258, refd to. [para. 86].

Minister of Employment and Immigration v. Villafranca (1992), 150 N.R. 232 (F.C.A.), refd to. [para. 87].

Zhuravlvev et al. v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3; 187 F.T.R. 110 (T.D.), refd to. [para. 87].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 87].

Resulaj v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 166; 2006 FC 269, refd to. [para. 87].

Alfaro v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 32; 2005 FC 92, refd to. [para. 87].

Santiago v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 185; 2008 FC 247, refd to. [para. 88].

Sanchez v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 38; 2008 FC 66, refd to. [para. 88].

Sanchez et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 115; 2008 FC 134, refd to. [para. 88].

Cruz v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 605; 2010 FC 929, refd to. [para. 88].

Odetoyinbo v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 285; 2009 FC 501, refd to. [para. 90].

Tetik v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 809; 2009 FC 1240, dist. [para. 94].

Sellan v. Canada (Minister of Citizenship and Immigration) (2008), 384 N.R. 163; 2008 FCA 381, refd to. [para. 95].

Varela v. Canada (Minister of Citizenship and Immigration) (2009), 391 N.R. 366; 2009 FCA 145, refd to. [para. 98].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 96, sect. 97 [para. 2 et seq.].

Authors and Works Noticed:

Cunningham, Benjamin, Article: Canada rethinks Czech visa law, Canadian Immigration Minister Jason Kenney blames fraud for influx of Roma asylum seekers, in Prague Post (April 23, 2009), generally [para. 46].

Davis, Jeff, Article: UN Refugee Agency Cries Foul on Mexican, Czech Visas, in Embassy Magazine (August 19, 2009), generally [para. 56].

United States of America, Department of State, Human Rights Reports: Czech Republic (2008), pp. 115, 116 [para. 86].

Counsel:

George J. Kubes, for the applicants;

John Provart, for the respondent.

Solicitors of Record:

George J. Kubes, Barrister and Solicitor, Toronto, Ontario, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on November 29, 2010, at Toronto, Ontario, by Crampton, J., of the Federal Court, who delivered the following judgment on December 13, 2010.