Janiak v. Canada (Citizenship and Immigration)

Janiak v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2012-06-19
Neutral citation
2012 FC 778
File numbers
IMM-8586-11
Decision Content
Date: 20120619
Docket: IMM-8586-11
Citation: 2012 FC 778
Toronto, Ontario, June 19, 2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
TOMAS JANIAK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This application must be allowed and the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada set aside.
[2] In my view, only one of the many grounds of review raised by the applicant, has merit. In his refugee claim, Mr. Janiak wrote: “After school I couldn’t find any job [because] I am Roma and no one gave me [an] opportunity to work for them. I had to go on social welfare to get some money for a life.”
[3] The Board in its decision, rightly or wrongly, defined the difference between discrimination and persecution in the following manner: “When discrimination rises to such a level that it prevents a person from accessing health care or education, or the protection of the state, or housing or employment to allow a person to survive, discrimination can become persecution [italics in original, emphasis added].”
[4] With respect to the claim of the applicant that he suffered persecution because he was unable to secure employment, the Board held as follows: “Although the claimant was denied employment opportunities because of his Roma ethnicity, and was never able to find any work, the claimant was able to access social welfare assistance from the government such that he was able to survive during his adult years after completing school in the Slovak Republic.” Accordingly, because the applicant had the benefit of social assistance, the Board found that the lack of employment has not risen to the level of persecution.
[5] The Board erred in its recitation of the evidence. The transcript of the applicant’s hearing indicates that he testified that although he did receive social assistance after he finished school in 1998, it ended in 2001 – he appears to have been cut off through no apparent fault of his own. He continued to live in the Slovak Republic until he came to Canada in 2008. For those seven years he lived with and off his parents.
[6] It may well be that the applicant will not establish persecution on the basis of lack of employment and lack of social assistance because he is Roma; however, that is a question for the Board and not this Court. Although there was a finding of state protection, it has no application to this ground of persecution.
[7] Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is allowed, the application for refugee protection is remitted back to the Board to be determined by a different panel, and no question is certified.
"Russel W. Zinn"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8586-11
STYLE OF CAUSE: TOMAS JANIAK v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 4, 2012
REASONS FOR JUDGMENT
AND JUDGMENT: ZINN J.
DATED: June 19, 2012
APPEARANCES:
Diana Younes
FOR THE APPLICANT
Monmi Goswami
FOR THE RESPONDENT
SOLICITORS OF RECORD:
HOHOTS WATT LLP
Barristers and Solicitors
Toronto, Ontario
FOR THE APPLICANT
MYLES J. KIRVAN
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT