Citation: 2019 RLLR 147
Tribunal: Refugee Protection Division
Date of Decision: January 7, 2019
Panel: H. Ross
Counsel for the Claimant(s): Howard Gilbert
Country: Czech Republic
RPD Number: TB6-04818
ATIP Number: A-2021-00655
ATIP Pages: 000040-000051
REASONS FOR DECISION
[1] [XXX], the principal claimant, [XXX] and [XXX] (a.k.a. [XXX]) claim protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)1.
[2] In accordance with Rule 55 of the Refugee Protection Division (RPD) Rules the claims were heard jointly,2 with the principal claimant being designated the representative for the three minor claimants.3
ALLEGATIONS
[3] The claimants rely on the allegations set out in the narrative portion of the principal claimant’s Basis of Claim Form (BOC)4. Briefly, the claimants allege a well-founded fear of persecution in the Czech Republic due to their Roma ethnicity. They claim to be afraid of the ethnic Czech population, racist elements in Czech society, namely, skinheads and the police. The claimants also state that they do not have a reasonable expectation of state protection, as whenever they have made attempts to obtain state protection, the police did not respond to their attempts.
DETERMINATION
[4] For the following reasons, the panel finds that the claimants are Convention refugees.
ISSUES
[5] The determinative issue in the claim is credibility. At issue also is the claimants’ delay in claiming protection, and their failure to claim protection in the United States (US).
ANALYSIS
Identity
[6] The panel finds that the claimants’ identities as nationals of the Czech Republic are established by the copies of their passports, found in Exhibit 1.5
[7] The panel also finds that the claimants’ ethnic profiles as Roma persons is satisfactorily established on the basis of the principal claimant’s testimony, the attestation from the Roma Community Centre,6 and also by the fact that during the hearing, interpretation services were provided using the Romungro dialect of the Roma language.
Credibility
[8] In assessing the credibility of the claimants’ allegations of discrimination, the panel noted that there were several issues relevant to the assessment, namely the principal claimant’s failure to claim protection in US, his re-availment of the protection of the Czech Republic, and his delay in claiming protection once the claimants arrived in Canada. The panel considered each of these issues in turn.
Delay in claiming
[9] The claimants arrived in Canada on [XXX] 2016, and made claims for protection on or about [XXX] 2016.7 A witness, [XXX], was called to explain the delay in claiming.8 She provided a number of reasons for the delay, including that she had to meet with the claimants several times before the forms were completed. The panel considered her evidence, as well as the length of the delay in assessing the impact of the delay on the claimants’ credibility. The delay is was six weeks. The panel concluded that when the totality of the circumstances is considered, a six-week delay is not so lengthy as to seriously impugn the credibility of the claimants.
Failure to claim elsewhere/re-availment
[10] The principal claimant travelled to the US in 2012, but did not make a claim for asylum. He testified that having travelled to the US on a temporary work programme, and being alone in the US, he only wanted to return to his family. He explained that had he claimed asylum in the US, he likely would have been separated from them for a long time, something that he did not want to do.
[11] Counsel submitted that the principal claimant had provided a reasonable explanation for his failure to claim asylum in the US, and why he returned to the Czech Republic. On considering the principal claimant’s explanation, the panel concluded that the explanation was credible, in the circumstances of the family being a young family. Accordingly, the panel finds that the credibility of the principal claimant was not undermined by the fact that he did not claim protection in the US and returned to the Czech Republic.
Did the claimants experience discrimination?
[12] In their BOC, the claimants alleged a well-founded fear of persecution in the Czech Republic due to their Roma ethnicity.9 In their amended narrative, they detailed their living circumstances which they described as poor and crowded.10 The settlement in which they lived was primitive, its roads were unpaved, there was no running water, garbage pickup was sporadic. In addition, the settlement was not serviced by public transportation. The claimant alleged that conditions in similar Czech communities was radically different from those in the Roma settlement. The principal claimant testified that he made several attempts to find alternate housing through government agencies, but was turned down at each attempt.
[13] The principal claimant testified as to the difficulties he and the other claimants encountered in public places and in obtaining publicly-available services. His cited incidents where he and his family were refused service in restaurants, followed in stores, as well as being attacked and beaten on public transit. Although the claimants turned to the police for assistance, the police did not act on their reports.
[14] In response to the panel, the principal claimant described the following incidents of discrimination:
a) being refused employment that had been promised to him through agent;
b) being refused public housing although such housing was available;
c) being constantly humiliated in public spaces, particularly in shops where the family was followed; and
d) the family was refused service in restaurants.
[15] The principal claimant alleged that the family’s Roma ethnicity was the sole reason for the discriminatory treatment meted out to him and the associate claimants.
[16] In the instant case, the discriminatory acts include being refused employment some 30-40 times. The principal claimant alleged he had been unemployed since 1998.11 He testified that he made some 30-40 unsuccessful attempts to finds work. As he did not speak the Czech language well, a Czech speaking friend would call the prospective employer on his behalf. Assured that there was work to be had, the principal claimant would then report to the workplace. Invariably, he would then be told that there was no work. The principal claimant cites this situation as an example of anti-Roma racism. The panel is not entirely persuaded of his position, because it can be argued that the employer never agreed to hire the principal claimant. He was intending to hire the Czech speaking person to whom he spoke. Put simply, the principal claimant was not the person the employers were expecting. In the result, the panel is not persuaded that the principal claimant’s ethnicity was the only deciding factor at play.
[17] With respect to their treatment in the public sphere, the panel finds that following the claimants while they shopped and refusing entry into restaurants, without justification, are clearly discriminatory acts.
[18] The principal claimant also described the following incidents:
• in the summer of 2015, an ice cream parlour refused to serve his wife and son;
• that same summer, the principal claimant’s mother and son were ejected from coffee shop;
• substandard medical care – Roma forced to wait or pay for services that should be free;
• intimidation by skinheads – in [XXX] 2013 about 80 skinheads marched through their community, screaming insults and beating Roma. The police took no action when complaints were made, although the complainants were able to describe their attackers; and
• in [XXX] 2014, the principal claimant and his spouse were attacked in a similar fashion. They went to a hospital and after a three to four hour wait, they were told that the doctor was too busy to see them. They went to the police station where they made a complaint. When they followed up two weeks later, the police informed them that the case was closed due to a lack of information.
[19] The panel finds that these actions are all clearly discriminatory in nature. In fact, the [XXX] 2013 incident is clearly of a criminal nature.
The documentary evidence
[20] The Board’s documentary evidence stated that racial discrimination is widespread in the Czech Republic. The Report of the Czech Ombudsman Office cites the following statistic:
Racial or ethnicity-based discrimination is perceived as the most frequent type of discrimination in the Czech Republic. Almost two thirds of respondents believe it is widespread, one fifth even believes it is extremely widespread.12
[21] With respect to the perception of how readily redress for discrimination is available, report goes on to note that:
[t]he respondents are very sceptical in rating the chances of the victims to assert their rights. Only 15 % believe that it is easy to get help for the victims of discrimination; and only 2 % of the respondents find the redress very easy. On the other hand, three quarters of the respondents think that it is difficult to invoke their rights, and more than one quarter consider it to be very difficult.13
[22] The US Department of State (DOS) Country Reports on Human Rights Practices for 2018 in the Czech Republic, identifies “crimes involving violence or threats of violence” against members of the Roma population as among the human rights issues prevalent in that country.14 Amnesty International makes specific reference to the ruling of the police in the death of a Roma man who died while being restrained by municipal officers and employees of a pizzeria as a result of his allegedly aggressive behaviour.15 The police discontinued their investigation finding that no crime had been committed.
[23] In its latest report, the US DOS states the following regarding the treatment of Roma persons:
National/Racial/Ethnic Minorities
There were approximately 300,000 Roma in the country, and many faced varying levels of discrimination in education, employment, and housing and have high levels of poverty, unemployment, and illiteracy.
Hate crimes against Roma continued to be a problem… Observers reported hate crimes are not sufficiently recognized by police, prosecutors, and judges, who often lacked will or adequate knowledge.
[… ]
Despite legislative measures aimed at desegregation of Roma in education, according to a Ministry of Education study, more than 29 percent of students in special schools were Roma, compared with 3.6 percent in regular elementary schools. After the introduction in 2017 of a free compulsory year of preprimary education at the age of five to six years old, the enrollment of Romani children in kindergartens increased slightly but remained markedly below the levels for non Romani peers. To support desegregation of Roma in schools, the government increased funding to provide additional support to students with special needs in mainstream schools.
Approximately one-third of Roma lived in “excluded localities” or ghettos. While the law prohibits housing discrimination based on ethnicity, NGOs stated that some municipalities discriminated against certain socially disadvantaged groups, primarily Roma, basing their decisions not to provide housing on the allegedly bad reputation of Romani applicants from previous residences.
The 2017 amendment to the law on persons with material need, which was intended to solve housing problems, in some cases had the opposite effect. The amendment allowed cities to declare certain areas as having an “increased occurrence of socially undesirable activity”. In such designated zones the government paid only a part of housing subsidies. Some cities started to use this instrument to get rid of Roma and other low-income citizens.
In September the European Roma Rights Center criticized President Zeman for his negative statements on Roma and in an open letter called for his resignation.
Zeman had stated that the unemployed persons in one of the country’s villages he visited were exactly the Roma who were forced to work during communism under the threat of imprisonment.
Roma were the most frequent targets of hate speech on internet.
In September the district court in Tachov fined a woman 20,000 koruna ($800) for posting threatening comments on the internet under a school photo of first graders from a local school. The children were mainly Romani, Arab, and Vietnamese, and the comments suggested sending them to gas chambers, shooting them, or throwing a hand grenade into the classroom. Police did not originally qualify the incident as a hate speech offense, but the supreme prosecutor requested a further investigation that led to the conviction.16
[24] The panel takes the documentary evidence to indicate that, in the Czech Republic, there is widespread discrimination against Roma persons. The panel finds that the claimants have clearly experienced discrimination.
Discrimination as opposed to persecution
[25] The issue for this panel is whether the discrimination these claimants experienced in the Czech Republic has risen to the level of persecution such as to bring them within the Convention refugee definition. Counsel for the claimant took the position that it has. He described the situation for Roma in the Czech Republic as being dire. He argues that the discrimination that Roma, in general, and the claimants in particular, experience in the Czech Republic has risen to the level of persecution.
[26] The United Nations High Commissioner for Refugees (UNHCR) Handbook and Guidelines discusses the issue of discrimination, noting the following:
54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.
55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.17
[27] The UNHCR document provides guidance in the determination of whether the experiences of a claimant have, cumulatively, risen to the level of persecution. The Federal Court in Liang, citing paragraphs 54 and 55 of the UNHCR Handbook, affirmed that in the exercise of determining whether cumulative discrimination and harassment constitutes persecution, it is necessary to “evaluate the claimant’s personal circumstances and vulnerabilities including age, health, and finances … “18
[28] The principal claimant’s personal circumstances include a low level of education, limited employment prospects, and limited finances. Balanced against these are the facts that he is relatively young ([XXX]), and in good health. This is also true of the female claimant.
[29] The claimants allege, and their counsel submits, that the measures of discrimination they faced in the Czech Republic has led to consequences of a substantially prejudicial nature for them, namely serious restrictions on their access to normally available educational facilities and their right to earn their livelihoods. In addition, counsel submits that, as Lovari, the claimants are made particularly vulnerable to discrimination. While conceding that many Roma are well integrated into Czech society, counsel described the [XXX] as being among the most excluded group of Roma in the Czech Republic. He stated that they, along with the [XXX], tended to live in isolated communities and were susceptible to the types of discriminatory practices the documentary evidence speaks to.
[30] In its report, Freedom House, estimated that the size of the Roma population in the Czech Republic was about 250,000 persons.19 Freedom House stated that Roma face “occasional threats and violence from right-wing groups.”20.
[31] The panel finds the two reports to be reliable, as the information they contain originates from sources that have an awareness of the situation of Roma in the Czech Republic. The sources cite information from NGOs and appear to be unbiased. Moreover, while the two reports are distinct, they contain and confirm substantially similar information. The panel gives significant weight to this objective information.
[32] Nonetheless, in assessing whether the discrimination the claimants experienced has risen to the level of persecution, the panel is mindful of the dicta of the Federal Court in Liang, regarding the necessity of evaluating a claimant’s personal circumstances and vulnerabilities including age, health, and finances when determining whether cumulative discrimination and harassment constitutes persecution.21
[33] The principal claimant’s personal circumstances are that:
• he is from one of the groups of Roma that are not integrated into Czech society;
• he lacks much formal education, does not speak the Czech language well, and has considerable difficulty finding employment;
• he is relatively young, with a growing family; and
• he and his family members have personally suffered a number of racist incidents, including witnessing an intimidatory march of skinheads through their community and an attack by skinheads in [XXX] 2014.
[34] In considering whether the incidents of discrimination amount, on a cumulative basis, to persecution, the panel is not persuaded that being refused service at an ice-cream parlour or being asked to leave a café amounts to persecution. Unpleasant yes, embarrassing, yes, but these appear to have been isolated incidents for which there may or may not be other explanations, which were not disclosed to the panel.
[35] The march through the claimant’s community was patently intended to frighten and intimidate all of the Roma in the community. The DOS Report indicates that:
Human rights issues included crimes involving violence or threats of violence against members of the Romani minority.
The government took steps to prosecute and punish officials who committed abuses in the security services and elsewhere in the government.22
[36] In the panel’s view, this speaks to the willingness of Czech authorities to investigate and prosecute offences against the Roma and other minorities, which is at odds with the claimants’ position that state protection will not be available to them.
[37] The result is that it is not clear to the panel that the incidents of discrimination the claimants complain of rise to the level of persecution. At the same time, the panel is also mindful of the statements in paragraph 55 of the UNHCR Handbook relating to cumulative discrimination. In particular, the effect of the measures of discrimination on the mind of the claimants. In testimony, the principal claimant discussed the effect the various incidents have had on him. The panel found him to be largely credible, as he answered all questions put to him without seeming exaggeration or subterfuge. He expressed his apprehension of returning to the Czech Republic, and the certain discrimination he and his family would face. The panel is not an expert in [XXX] issues. However, it finds that, in all the circumstances of the case, including the principal claimant’s personal circumstances, the cumulative effect of the discriminatory incidents was that they have created a feeling of apprehension and insecurity in the mind of the principal claimant, as regards his future existence and that of his family if returned to the Czech Republic. The panel finds that this apprehension is not limited to their financial existence, as the principal claimant could go abroad to earn money as he has already done.
The claims of the associate claimants
[38] As stated earlier, each associate claimant relies on the same set of circumstances as the principal claimant. The panel finds that they have established a nexus to the Convention refugee definition as members of a particular social group, namely, family members of the principal claimant, as well as by virtue of their Roma ethnicity. As such, the panel determines that the outcomes of their claims will be similar to that of the principal claimant.
CONCLUSION
[39] For the reasons provided, the panel finds that there is a reasonable chance that the principal claimant would be persecuted on the ground of his Roma ethnicity if returned to the Czech Republic. The panel determines the principal claimant to be a Convention refugee. His claim for protection is accepted.
[40] The panel makes a similar determination with respect to the associate claimants. Their claims are also accepted.
(signed) H. Ross
January 7, 2019
1 The Immigration and Refugee Protection Act, S.C.2001, c.27, as amended, sections 96 and 97(1).
2 Refugee Protection Division (RPD) Rules SOR/2012-256, Rule 55.
3 Ibid., Rule 20.
4 Exhibits 2, Basis of Claim Form (BOC)-TB6-04818.
5 Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copies of Passports.
6 Exhibit 11, Personal Disclosure received July 19, 2019, at p. 1.
7 Exhibit 1, Package of Information from the Referring CBSA/CIC, Generic Application Form for Canada.
8 Exhibit 12, Personal Disclosure received July 19, 2019.
9 Exhibits 2-6, BOCs.
10 Exhibit 10, BOC Amendment.
11 Exhibit 1, Package of Information from the Referring CBSA/CIC, Schedule A Form.
12 Exhibit 7, National Documentation Package (NDP) for Czech Republic (March 29, 2019), item 13.4.
13 Ibid.
14 Ibid., item 2.1.
15 Ibid, item 2.2
16 Ibid., item 2.1.
17 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, NCR/IP/4/REV.1, Reedited, Geneva, January 1992, UNHCR 1979, at paras 54-55.
18 Liang. Hanquan v. M.C.I. (F.C., no. IMM-3342-07), Tremblay-Lamer, April 8, 2008, 2008 FC 450 [Liang], at para. 22.
19 Exhibit 7, NDP for Czech Republic (March 29, 2019), item 2.5.
20 Ibid.
21 Liang, supra, footnote 18.
22 Exhibit 7, NDP for Czech Republic (March 29, 2019), item 2.1.
