Thursday, May 05, 2011

Kaleja–failure to properly consider country conditions and discrimination versus persecution

Kaleja v. Canada (Citizenship and Immigration), 2010 FC 252 (CanLII)

Judge: Justice O'Keefe

Date heard: October 14, 2009

Date decided: March 4, 2010

Counsel for Kaleja: Max Berger

Counsel for Minister: Kevin Doyle

The Applicants were a father and daughter from the Czech republic of Roma ethnicity who had claimed refugee protection in Canada, and their claims had been denied by the RPD (para. 1).

Both Applicants had a history of being discriminated against in the Czech Republic because of their ethnicity, and the father had been attacked by skinheads (paras. 3-8).

The crux of the Applicants’ case was that the Board had erred in its understanding of the fact that they were not represented by counsel, in its analysis of the cumulative discrimination amounting to persecution, and in its analysis of country conditions (paras. 9-11).

The RPD decision contains a single paragraph on the general conditions for Roma in the Czech Republic, and then finds that the past experiences of the Applicants did not meet that threshold. Justice O’Keefe found that “This does not respect the requirement of an ‘existence of justification, transparency and intelligibility within the decision-making process’…” (paras. 21-22). For the Member to have properly found that the Applicants experienced only discrimination and not persecution, he or she would have had to “sufficiently distinguish persecution from what the applicants experienced” (para. 23) and properly address the country conditions documents (para. 24), since the Member did come to the conclusion that they were members of a persecuted group (para. 25).


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