Cina et al. v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Kelen, J.
• Citation: (2011), 390 F.T.R. 271 (FC),2011 FC 635
• Date: 26 April 2011

Cina v. Can. (M.C.I.) (2011), 390 F.T.R. 271 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JN.027

Milan Cina, Helena Cinova, Andrea Cinova, Tomas Cina (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1773-10; 2011 FC 635)

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

Federal Court

Kelen, J.

May 31, 2011.

Summary:

The applicants, a family of four citizens of the Czech Republic, arrived in Canada in 2007 and claimed refugee status. They claimed that they had been persecuted in the Czech Republic because of their Roma ethnicity (a gypsy family). The Refugee Protection Division of the Immigration and Refugee Board found that the applicants did not suffer persecution, and so were neither Convention refugees nor persons in need of protection. The Board then considered the availability of state protection, and concluded that the applicants had failed to rebut the presumption of state protection. The applicants sought judicial review. They proposed three questions for certification.

The Federal Court dismissed the application. The Board reasonably concluded that the applicants were not Convention refugees or persons in need of protection. The principle of judicial comity was directly applicable. The proposed questions for certification involved exactly the same issue. Accordingly, there was no question for certification.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Federal Court set out the law of bias, including the classic articulation of the test for determining whether a decision gave rise to a reasonable apprehension of bias - Where the bias was alleged to be not of an individual decision maker, but at an institutional level, the test was similar - See paragraphs 39 to 42.

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, a family of four citizens of the Czech Republic, claimed refugee status - They claimed that they had been persecuted because of their Roma ethnicity (a gypsy family) - The Immigration and Refugee Board concluded that the applicants were not Convention refugees or persons in need of protection - The applicants submitted that the Board erred in law in concluding that violence against Roma had declined, by failing to refer to, or consider, the most recent evidence suggesting the opposite conclusion - The Federal Court held there was no basis to interfere with the Board's decision - The Board relied on the report quoted by the applicants, and had regard to the gist of the evidence cited by the applicants - The Board recognized that there was rampant discrimination against Roma in the Czech Republic, but concluded that such discrimination did not rise to the level of persecution which would entitle the applicants to refugee protection - The Board also found that the Czech government was willing and able to protect the applicants with "adequate state protection" - The Board's conclusions were supported by the evidence and within the range of reasonable outcomes - See paragraphs 73 to 76.

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, a family of four citizens of the Czech Republic, claimed refugee status - They claimed that they had been persecuted because of their Roma ethnicity (a gypsy family) - The Immigration and Refugee Board concluded that the applicants were not Convention refugees or persons in need of protection - The applicants submitted that the Board erred in law in relying upon the wrong test for state protection - The Federal Court disagreed - Although the Board did refer to the "serious efforts" of the Czech government to combat discrimination against Roma, the Board's reasons demonstrated that the Board was providing details of those efforts as part of a broader description of the adequacy of state protection - The Board was also supporting its finding that the burden on the applicants to displace the presumption of state protection was relatively high, because the Czech Republic was a functioning democracy - The same applied to the single instance during which the applicants approached the police - The Board's conclusion that the police response was adequate was reasonably open to the Board - See paragraphs 68 to 72.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The applicants, a family of four citizens of the Czech Republic, claimed refugee status - They claimed that they had been persecuted because of their Roma ethnicity (a gypsy family) - The Immigration and Refugee Board concluded that the applicants were not Convention refugees or persons in need of protection - The applicants submitted that the Board made capricious findings of fact in holding that the applicants' problems in the Czech Republic did not rise to the level of persecution - The Federal Court agreed with the respondent regarding the Board's evaluation of the evidence regarding persecution in employment, education, housing and health care - The applicants' evidence was that they were only able to find temporary employment, were constantly fired because of their ethnicity, and had difficulty accessing services on par with other members of Czech society - The Board's conclusion that those impediments did not rise beyond discrimination was within the Board's specialized expertise and entitled to deference - The court was not to substitute its own evaluation of the evidence for that of the Board - The Board's reasons demonstrated that the Board was aware of and considered the applicants' evidence, and came to its own conclusion - Its conclusion was within the range of reasonable conclusions - See paragraphs 63 to 67.

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) - [See both Aliens - Topic 1314 ].

Aliens - Topic 4088

Practice - Hearings - Constitution of board (incl. bias) - The Immigration and Refugee Board concluded that the applicants did not have a well-founded fear of persecution in the Czech Republic - The applicants submitted that the dramatic difference in the Board's acceptance rate for Czech refugees before and after comments from the Minister and Citizenship of Immigration in April 2009, raised a reasonable apprehension of bias on the part of members of the Board with regard to their determinations of refugee claims from the Czech Republic - The Federal Court stated that the allegation of bias had been decided and rejected by the court in a prior decision - The case therefore raised the principle of judicial comity - Accordingly, the Minister's comments did not raise a reasonable apprehension of bias - However, the court considered the issue in any event - The court had additional evidence not previously available: the statistics regarding the Board's treatment of claims from the Czech Republic between January and September of 2010 - The Minister's comments must be taken in context - The court considered four factors that constituted the context, and found the comments reasonable - The other cases that had considered the bias question had all concluded that the statistical evidence was not sufficient to demonstrate bias on the part of the Board - Many factors could explain why the Board stopped accepting as many refugee claims from the Czech Republic - See paragraphs 43 to 58.

Aliens - Topic 4088

Practice - Hearings - Constitution of board (incl. bias) - The Immigration and Refugee Board concluded that the applicants did not have a well-founded fear of persecution in the Czech Republic - The applicants submitted that the dramatic difference in the Board's acceptance rate for Czech refugees before and after comments from the Minister and Citizenship of Immigration in April 2009, raised a reasonable apprehension of bias on the part of members of the Board with regard to their determinations of refugee claims from the Czech Republic - The Federal Court did not fault the Board's analysis - The court affirmed earlier jurisprudence holding that the Board was independent of the Minister - An informed person, viewing the matter realistically and practically, would not apprehend that the Board was biased because of the public remarks made by the Minister - The applicants' submission was premised on "unrealistic speculation" - See paragraphs 60 to 62.

Courts - Topic 82

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Federal Court - Judicial comity - [See first Aliens - Topic 4088 ].

Cases Noticed:

Dunkova et al. v. Canada (Minister of Citizenship and Immigration) (2010), 377 F.T.R. 306; 2010 FC 1322, refd to. [para. 16].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 16, footnote 1].

Chan v. Minister of Employment and Immigration, [1995] 3 S.C.R. 593; 187 N.R. 321, affing. [1993] 3 F.C. 675; 156 N.R. 279 (F.C.A.), refd to. [para. 16, footnote 2].

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. 27].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 27].

Liang v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 324; 2008 FC 450, refd to. [para. 28].

Corzas Monjaras et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 484; 2010 FC 771, refd to. [para. 28].

Rodriguez Perez v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 632; 2009 FC 1029, refd to. [para. 28].

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

Kozak et al. v. Canada (Minister of Citizenship and Immigration) (2006), 349 N.R. 309; 2006 FCA 124, refd to. [para. 32].

Zupko et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 868; 2010 FC 1319, consd. [para. 34].

Ferencova v. Canada (Minister of Citizenship and Immigration) (2011), 388 F.T.R. 114; 2011 FC 443, refd to. [para. 34].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 39].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 40].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 41].

Gabor v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 767; 2010 FC 1162, refd to. [para. 54].

Cervenakova v. Canada (Minister of Citizenship and Immigration) (2010), 381 F.T.R. 74; 2010 FC 1281, refd to. [para. 55].

Dunova v. Canada (Minister of Citizenship and Immigration) (2010), 367 F.T.R. 89; 2010 FC 438, refd to. [para. 55].

Bader v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 200; 2004 FC 214, refd to. [para. 60].

Flores Carrillo v. Canada (Minister of Citizenship and Immigration) (2008), 377 N.R. 393; 2008 FCA 94, refd to. [para. 69].

Sashitharan v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 585; 2004 FC 1021, refd to. [para. 74].

Gonzalez Cervantes v. Canada (Minister of Citizenship and Immigration) - see Cervantes et al. v. Canada (Minister of Citizenship and Immigration).

Cervantes et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 468; 2008 FC 680, refd to. [para. 75].

Statutes Noticed:

Federal Courts Rules, 1998, rule 80(2.1) [para. 25].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 96 [para. 23]; sect. 97 [para. 24].

Authors and Works Noticed:

Hathaway, James C., The Law of Refugee Status (1991), pp. 104, 105 [para. 16, footnote 1].

Counsel:

Max Berger, for the applicants;

Amina Riaz, for the respondents.

Solicitors of Record:

Max Berger Professional Law Corporation, Toronto, Ontario, for the applicants;

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

This application for judicial review was heard at Toronto, Ontario, on April 26, 2011, before Kelen, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated May 31, 2011.