Date: 20000831
Docket: IMM-5505-99
BETWEEN:
NICOLAE BUDOIU
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MCKEOWN J.
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division ("CRDD"), dated May 4, 1998, in which the CRDD found that the applicant was not a Convention refugee.
[2] The three issues are whether:
| 1. The Board erred in law by imposing too high of a standard of proof on the applicant in determining whether he is a Roma. |
| 2. Whether the proper test was used in determining whether he would be perceived as a Roma. |
| 3. Whether the applicant would be a risk for not doing military service. |
[3] With respect to the first issue, the Board made the following finding, "based on the evidence the panel does not find definitively that the claimant is a Rom". The Board went on to say that "the panel accepts that the claimant may have some Roma background." The applicant submits that the Board erred in requiring a higher standard for its finding of ethnicity when it used the term "definitively".
[4] In my view, if the Board had not dealt with the matter extensively, it could be said that the Board had raised the evidentiary burden on the applicant. However, based on the evidence, it was entirely open to the panel to find that the applicant was not Roma. His parents both spoke the Roma language but the applicant was unable to testify to any Roma customs and traditions. His testimony about his speech and dress were vague. He could not answer the panel's questions concerning how someone might identify him as Roma. As noted by the respondent, the only evidence establishing the applicant's Roma identity was a membership card for the Christian Organization of Roma of Romania ("C.O.RE."), an organization whose meetings the applicant never attended. In addition, the applicant obtained the C.O.R.E. card only after leaving Romania.
[5] After finding that the applicant was not "definitively" a Rom, the Board went on to deal with the question of whether the applicant would be perceived as Roma. The Board stated that "even if he is [a Roma], he is not readily identifiable and as such not at added risk as a Rom. The claimant's family clearly `passed' as non-Rom and were able to achieve a fairly high economic standing."
[6] The applicant relies on Pluhar v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 153 (T.D.). I agree with Evans J. when he states at paragraph 10 that "it is inherently dangerous for Board members to base a finding on whether people in another country would regard a claimant as of particular ethnicity solely on the basis of the members' observation of the person concerned." In my view however, the Board did not rely simply on its observation of the person concerned. The Board asked he whether he could say with some certainty if his Roma identity would distinguish him from other Romanians in Romania. His response was "I don't know what to tell you." He was later asked whether people would know that he was a Roma in Bucharest, to which he answered "probably not".
[7] The Board should not have used the words "he is not readily identifiable". That is setting the test higher. In the context of the case, they could have stated that they found that he was not perceived as a Roma.
[8] As well as the findings discussed above, as stated earlier, the Board made yet another finding that "the claimant may have some Roma background." If the Board could perceive that he might be a Roma, the question then becomes whether the racists and bigots from whom he feared persecution would also not come to the conclusion that he might be a Roma.
[9] This third finding is particularly important when one looks at the last issue, which is whether he would be at risk for not participating in military service. With respect to military service, the entire findings of the Board are as follows:
| The panel concedes that the claimant may be prosecuted for having evaded military service. The requirement to perform military service is a law of general application in that it applies to all Romanian males of a certain age. The panel does not find this law to be inherently persecutory and since it does not find the claimant to have established that he is identifiably Roma and as such faces a serious possibility of persecution on that ground it, does not find the prospect of military service persecutory. |
[10] McGuigan J.A. in Zolfagharkhani v.Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.) at page 552, states some general propositions relating to the status of an ordinary law of general application in determining the question of persecution. The relevant proposition in this case is as follows:
| (1) The statutory definition of Convention refugee makes the intent (or any principle effect of an ordinary law of general application, rather than a motivation of claim, relevant to the existence of persecution). |
In this case, the Board did not analyse what was the principle effect of the military law. In my view, the Board should have analysed why military service was not inherently persecutory, based on two statements in its decision. The Board accepted that the applicant may have some Roma background and also commented that the claimant may be prosecuted for having evaded military service. Surely if he had some Roma background, this fact would affect the risk to the applicant. However, we do not know what the Board's view was on this issue as they stated that the applicant has not established that he is identifiably Roma. The applicant is not obliged to inform the Board why he might be perceived by the military as a Roma. Not surprisingly, he stated that he did not know why the military persecuted Roma. However, once the Board decided he might have some Roma background, it was obligated to analyse why the applicant would not be at risk, especially as the Board agreed that Roma do have difficulty in the military. There is no discussion on whether the effect of the law on the applicant would be persecutory. The Board had a duty to consider this, particularly as the applicant testified that his conscience was in play, as the army did not protect Roma. As well, as the applicant feared he would be mistreated in the army because of his ethnicity. On the authority of Zolfagharkhani, supra, this was a political opinion it genuinely felt.
[11] For the foregoing reasons, the application for judicial review is allowed. The matter is returned to the Board for determination by a differently constituted panel in a
manner not inconsistent with these reasons.
[12] In the context of my reasons, there is no need to certify any of the proposed questions.
"W. P. McKeown"
J.F.C.C.
Toronto, Ontario
August 31, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: NICOLAE BUDOIU |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: MONDAY, AUGUST 14, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: MCKEOWN J. |
DATED: THURSDAY, AUGUST 31, 2000
| APPEARANCES BY: Mr. Michael Crane |
For the Respondent
| SOLICITORS OF RECORD: Michael Crane |
Barrister & Solicitor
166 Pearl Street, Suite 200
Toronto, Ontario
M5H 1L3
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000831
Docket: IMM-5505-99
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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