Spacil 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. 248 (FC),2011 FC 634
• Date: 27 April 2011

Spacil v. Can. (M.C.I.) (2011), 390 F.T.R. 248 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JN.026

Spacil Jaroslav (a.k.a. Jaroslav Spacil), Spacilova Ruzena (a.k.a. Ruzena Spacilova), Alex Spacil Erik (a.k.a. Erik Alex Spacil), Jaroslav Spacil (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3214-10; 2011 FC 634)

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

Federal Court

Kelen, J.

May 31, 2011.

Summary:

The applicants claimed that they had been persecuted in the Czech Republic due to their Roma ethnicity. The Refugee Protection Division of the Immigration and Refugee Board found that the applicants were neither Convention refugees nor persons in need of protection under ss. 96 or 97 of the Immigration and Refugee Protection Act because there was adequate state protection. The applicants sought 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 - [See Courts - Topic 82 ].

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The applicants claimed that they had been persecuted in the Czech Republic due to their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board found that the applicants were neither Convention refugees nor persons in need of protection under ss. 96 or 97 of the Immigration and Refugee Protection Act because there was adequate state protection - The applicants sought judicial review, asserting, inter alia, that the difference in the Board's acceptance rate for Czech refugees before and after comments from the Minister of Citizenship and 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 dismissed the application - An informed person, viewing the matter realistically and practically, and having thought the matter through, would not have apprehended that the Board member was biased in this case because of the public remarks made by the Minister - The submission was premised on unrealistic speculation - Looking at the Minister's comments in context, the court understood why he had expressed a concern "about the numbers of false refugee claimants" from the Czech Republic - Further, other cases that had considered this bias question had all concluded that the statistical evidence was not sufficient to demonstrate bias on the part of the Board - No other evidence of bias existed to support the claim - See paragraphs 38 to 62.

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 claimed that they had been persecuted in the Czech Republic due to their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board found that the applicants were neither Convention refugees nor persons in need of protection under ss. 96 or 97 of the Immigration and Refugee Protection Act because there was adequate state protection - The applicants sought judicial review, asserting, inter alia, that the Board had erred in finding that the police in the Czech Republic had provided adequate protection to the applicants in answer to their complaints - The Federal Court dismissed the application - The Board was reasonable in finding that there was evidence of ongoing violence and discrimination against Roma in the Czech Republic, but also that the evidence demonstrated serious efforts by the Czech authorities to combat the acknowledged problem - See paragraphs 63 to 72.

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 claimed that they had been persecuted in the Czech Republic due to their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board found that the applicants were neither Convention refugees nor persons in need of protection under ss. 96 or 97 of the Immigration and Refugee Protection Act because there was adequate state protection - The applicants sought judicial review, asserting, inter alia, that the Board had erred in relying on the wrong test for state protection - The Federal Court dismissed the application - The Board found that the burden was on the applicants to displace the presumption of state protection and that the evidentiary burden was higher because of the relatively high level of democracy in the Czech Republic - The Board considered whether the applicants' evidence demonstrated a failure of the state to provide protection to them - The Board concluded that the applicants had been adequately protected by the Czech state - This conclusion was within the range of reasonable conclusions open to the Board - There was no basis on which to intervene in the Board's findings with respect to state protection - See paragraphs 73 to 76.

Courts - Topic 82

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Federal Court - Judicial comity - The applicants claimed that they had been persecuted in the Czech Republic due to their Roma ethnicity - The Refugee Protection Division of the Immigration and Refugee Board found that the applicants were neither Convention refugees nor persons in need of protection under ss. 96 or 97 of the Immigration and Refugee Protection Act because there was adequate state protection - The applicants sought judicial review, asserting, inter alia, that the difference in the Board's acceptance rate for Czech refugees before and after comments from the Minister of Citizenship and 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 dismissed the application - The issue had been raised in numerous recent cases before the court, each of which had rejected the allegation of bias - Judicial comity applied - The Minister's comments did not raise a reasonable apprehension of bias - See paragraphs 34 to 37.

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. 26].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 26].

Corzas Monjaras et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 484; 2010 FC 771, refd to. [para. 27].

Rodriguez Perez v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 632; 2009 FC 1029, refd to. [para. 27].

Liang v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 324; 166 A.C.W.S.(3d) 950; 2008 FC 450, refd to. [para. 28].

Kozak et al. v. Canada (Minister of Citizenship and Immigration) (2006), 349 N.R. 309; 2006 FCA 124, refd to. [para. 31].

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

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

Dunkova et al. v. Canada (Minister of Citizenship and Immigration) (2010), 377 F.T.R. 306; 2010 FC 1322, refd to. [para. 40].

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].

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

Hippolyte v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 45; 2011 FC 82, refd to. [para. 74].

Flores Carrillo v. Canada (Minister of Citizenship and Immigration) (2008), 377 N.R. 393; 2008 FCA 94, refd to. [para. 74].

Beharry et al. v. Canada (Minister of Citizenship and Immigration) (2011), 383 F.T.R. 161; 2011 FC 111, refd to. [para. 75].

Toriz Gilvaja v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 391; 2009 FC 598, refd to. [para. 75].

Cervenakova v. Canada (Minister of Citizenship and Immigration) (2010), 381 F.T.R. 74; 2010 FC 1281, refd to. [para. 78].

Dunova v. Canada (Minister of Citizenship and Immigration) (2010), 367 F.T.R. 89; 2010 FC 438, refd to. [para. 78].

Counsel:

Alyssa Manning, for the applicants;

Gordon Lee, for the respondent.

Solicitors of Record:

Vandervennen Lehrer, Toronto, Ontario, for the applicants;

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

This application was heard at Toronto, Ontario, on April 27, 2011, by Kelen, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on May 31, 2011.