Date: 20030620
Docket: IMM-1771-02
Citation: 2003 FCT 770
Ottawa, Ontario, this 20th day of June 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
PETRONELA NEGOITA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Petronela Negoita (the "Applicant") seeks judicial review of the decision made by the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"). In its decision, dated April 3, 2002, the Board determined the Applicant not to be a Convention refugee.
[2] The Applicant is a citizen of Romania. She came to Canada in November 1997 in possession of a work authorization and worked as an exotic dancer. On April 3, 2001, she married a Canadian citizen. She filed her claim for Convention refugee status in Canada on May 30, 2001.
[3] The Applicant based her claim for Convention refugee status on her fear of abuse at the hands of her former common law partner in Romania, as well as on her Roma ethnicity. She claimed that as a Roma, the police would be unwilling to protect her from such abuse. As part of her claim to be a Roma, the Applicant said that she was a member of the Lautari (musician) Roma clan and had grown up in the town of Buzau.
[4] The Applicant claimed that she was "sold", according to Roma custom, to a man named Ionel Miroslav. She never formally married this man but co-habited with him in accordance with Roma custom. In August 1988, the Applicant gave birth to a daughter. She claimed that after the birth of her child, her husband increased the level of physical and verbal abuse.
[5] The Applicant claimed that in 1990, her common law husband forced her to leave the matrimonial home and would not allow her to take their daughter with her. She fled from the smaller town of Buzau to Bucharest, the capital of Romania, because she feared that her husband would seriously harm or kill her. She began working as a waitress and claimed to have experienced a great deal of harassment and discrimination due to her Roma ethnicity. She said that leaving her common law husband was a source of embarrassment for him in their Roma community.
[6] The Applicant said that in 1993 she returned to Buzau to see her daughter. Upon her return, her husband beat her badly, forcibly confined her and forced her to work for him as a dancer. She escaped and returned to Bucharest. At this time, she met an individual who offered her the opportunity to come to Canada with a work authorization, to work as an exotic dancer. The Applicant, however, did not want to leave her daughter behind in Romania.
[7] In the summer of 1997, the Applicant attempted again to see her daughter. She claimed that her husband threatened to kill her and stabbed her in the shoulder. Again, she escaped and received medical treatment both in Buzau and in Bucharest. She concluded, after this incident, that she was not safe in Romania and would have to leave the country to avoid further harm from her husband. On November 11, 1997, she travelled by air to Canada and began working under an employment authorization.
[8] The Applicant remained in Canada with status until she inadvertently failed to renew her work authorization. She then sought Convention refugee status.
[9] In the meantime, the Applicant returned to Romania three times after arriving in Canada and before filing her claim for Convention refugee status. She returned to see her daughter, without the knowledge of her husband. She made one trip in 1998 and two, in 1999. She failed to see her daughter on the trip in 1998 and during her first trip in 1999, but did manage to see the child, from a distance, during her second trip in 1999. She claimed that her husband learned of this second trip in 1999 and told the agent who had arranged for the Applicant to see her daughter that he would kill the Applicant. She claimed that she saw her husband at the airport when she was leaving to return to Canada and with assistance from the military police and the agent, the husband left the airport.
[10] The Applicant attended before the Board on January 28, 2002 for the hearing of her Convention refugee claim. She testified at the hearing with the assistance of a Romanian interpreter. However, at the request of the Board, she spoke in the Roma language in the absence of a Roma interpreter.
The Board's Decision
[11] The Board found that the Applicant had not established, on a balance of probabilities, that she had a well-founded fear of persecution. It accepted that she had Roma heritage but found that her links to the Lautari clan were tenuous on the basis of her level of education, employment history, facility with the English language, lack of familiarity with the Romani language and the size of her family. In the Applicant's case, these factors differed from the majority of Roma in Romania, according to the documentary evidence. The Board also commented upon the Applicant's physical appearance. The Board reasoned that her fair skin was a reason why she would be less likely to be considered to be a Roma by the people in Romania. For all these reasons, the Board concluded that the documentary evidence showing serious discrimination against the Roma people would not apply to the Applicant.
[12] The Board considered the claims of domestic violence and found that the Applicant had experienced such abuse prior to 1997. However, it was not satisfied that the Applicant's common law husband constituted a present and future threat to the Applicant.
[13] The Board assessed the Applicant's fear of her husband in light of her actions since arriving in Canada. There was a three and a half year delay in making her claim. During that time the Applicant extended her work authorization, travelling to Mexico twice and returned to the country of her alleged persecution three times. The Board found that this behaviour was inconsistent with a claim that she subjectively feared for her personal safety in Romania.
[14] The Board also found that the Applicant had not established, on a balance of probabilities that she in fact had a daughter. The Applicant did not present any documentary evidence such as photographs, a birth certificate or school records to show that she had a daughter. The Board did not accept her explanation that she had forgotten to bring a photograph of her daughter and drew a negative inference form the fact that despite three return visits to Romania prior to making her claim for Convention refugee status, she had failed to obtain a birth certificate or school records.
[15] The Board also found the Applicant's evidence to be vague and inconsistent concerning the times she had returned to Romania to see her daughter, particularly in relation to her last visit in 1999 and the incident at the airport with her common law husband.
SUBMISSIONS
[16] The Applicant raises several issues. First she alleges that the Board breached the principle of natural justice by proceeding in the absence of an interpreter when the circumstances showed that one was necessary. Here the Applicant refers to the Board's request that she speak some Romani words and sentences without the presence of a Romani interpreter. There was no evidence that the Board itself understood the Romani language.
[17] Next, the Applicant argues that the Board failed to provide clear reasons and this amounts to a patently unreasonable decision. As an example, the Applicant says that the Board initially found that she had a 14-year old daughter but later in its reasons, stated that it was not satisfied that she in fact had a daughter. She says that the Board also found that she was of Roma heritage and later found that there were many differences between the Applicant and the majority of Roma in Romania.
[18] The Applicant further argues that the Board improperly considered her skin tone as a factor in assessing her Romani heritage, together with the other factors identified by the Board, without considering how all these factors would affect the perception of others in Romania that she is a Roma. The Applicant says this is an error in law.
[19] The Applicant says that the Board also erred in law by drawing a negative inference from her delay in making her Convention refugee claim. She says that this inference was flawed since it is based on misinterpretation of relevant evidence given under oath. She claims that the Board failed to consider her legitimate reasons for delaying her claim.
[20] The Applicant says that she had legal status in Canada since her arrival and did not feel fearful of returning to Romania as she had "de facto" protection in Canada. She relies on Yoganathan v. Canada (Minister of Citizenship and Immigration, [1998] F.C.J. No. 511 (T.D.)(Q.L.). She argues that, contrary to the findings of the Board, her activities since arriving in Canada are consistent with a subjective fear of persecution.
[21] The Applicant acknowledges that the Board is the trier-of-fact and its conclusions will not be lightly interfered with by a reviewing court. At the same time, however, she argues that the cumulative effect of the errors made by the Board amounts to a sufficient reviewable error to justify judicial intervention in the Board's decision.
[22] The Respondent generally takes the position that the Board committed no reviewable error. It says that the Board is in the best position to assess credibility of an applicant's evidence and to draw the necessary inferences. As long as those inferences are not patently unreasonable, its findings are not reviewable: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[23] The Respondent further argues that the Applicant has failed to show that the Board ignored or misinterpreted the evidence. Her allegations amount to disagreement with the manner in which the Board weighed the evidence and this is a matter beyond the role of a reviewing court: Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346 (C.A.)(QL) and Aguebor, supra.
ANALYSIS
[24] The Applicant claims that she was denied her right to procedural fairness as a result of the Board's request that she speak in the Romani language in the absence of an interpreter, when there was no evidence that the Board had any particular knowledge of that language. She also alleges that the Board improperly relied on stereotypical reasoning, that is, concerning her physical appearance, in concluding that she would not be perceived by others as having Roma heritage.
[25] These two findings, in particular, are problematic. Insofar as the Board purported to draw a negative credibility finding against the Applicant on the basis of its assessment of her facility in the Romani language, that finding cannot stand. The Board demonstrated no particular expertise in assessing the Romani language and it can rely on no presumptions in that regard. Requesting that the Applicant speak in the Romani language without an interpreter present was clearly improper.
[26] Similarly, the Board's reference to and reliance upon the skin colour of the Applicant was inappropriate. Justice Evans, as he then was, in Pluhar v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 153 stated as follows at paragraphs 10 and 11:
...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.
There may, of course, be some situations in which it will be quite obvious from a person's appearance that the person is not of a particular ethnicity. However, since Ms. Pluharova had black hair and a "sun tanned" appearance, the panel's "common sense" was an insufficiently reliable basis for the panel's assessment of such a sensitive matter. Skin tone cannot be categorized simply as either "light" or "dark": there is a broad spectrum between these polarities. Racists may be able to identify a person as a member of a minority group by physical characteristics that would not necessarily be apparent to people in other countries.
[27] The Board here improperly used its own observation as to the Applicant's skin tone to infer that she would not be perceived as Roma. As noted by Justice Evans, this is an "insufficiently reliable" basis for the Board to determine how the Applicant would be perceived by other people in her country of birth.
[28] However, these findings by the Board do not necessarily lead to the conclusion that this application should be allowed. In Pluhar, supra, the Board's improper assessment of the applicant's physical characteristics was the basis for its rejection of her refugee claim. In the present case, the rejection of the Applicant's claim was not based on this factor, but on the fact that the Board had did not find the Applicant's testimony to be credible, in many respects, and was not satisfied that the Applicant subjectively feared for her personal safety in Romania. Similarly, if the negative credibility finding that arose from the Board's improper conduct relative to requesting that the Applicant speak in Romani in the absence of a Romani interpreter had been determinative, or even significant, then a reviewable error would have occurred.
[29] The critical question for determination by the Board was whether the Applicant had shown, on a balance of probabilities, that she held a subjective fear of persecution in Romania and whether that fear was objectively well-founded: Ward v. Canada (Attorney General), [1993] 2 S.C.R. 687.
[30] Delay in seeking Convention refugee status is not, by itself, a determinative factor in assessing the element of a subjective fear of persecution: Huerta v. Canada (Minister of Employment and Immigration (1993), 157 N.R. 225 (F.C.A.). However, it is a relevant factor to be assessed relative to both the actions and evidence of a claimant.
[31] I agree, as held in the case of Yoganathan, supra, that where an applicant does not "have to" seek protection when outside her country of persecution because she is safe from being forced to return, not making a refugee claim during the time when "de facto" protection existed should not be held against her. The fact that the Applicant in this case was safe from returning to Romania, through her possession of a valid work authorization in Canada, is a valid reason why the Board should not have been unduly critical of the 3 ½ year delay in making a refugee claim. However, in this case, the Board's finding on subjective fear was not limited to the issue of delay. Further, I find Yoganathan, supra, distinguishable on its facts, in that there, evidence of a strong possibility of future persecution existed.
[32] In Yoganathan, supra, the applicant had an employment contract to be at sea, away from Sri Lanka, and therefore did not claim Convention refugee status until finding out that his contract would not be renewed and he would have to return, permanently to his country of persecution. The applicant in that case, during the validity of his employment contract, returned to Sri Lanka on several occasions and during these returns he was detained, interrogated and beaten by security forces.
[33] In the present case, the Applicant returned to Romania and claimed to have experienced one possible incident, at the airport as she was departing, where her former common law husband attempted to find and hurt her. The Board found the Applicant's testimony in this area to be "entirely lacking in credibility".
[34] The Board decided the Applicant had not met the onus of showing, on a balance of probabilities, that she would face future persecution in Romania. It found that her activities were inconsistent with someone holding a subjective fear of persecution. The Board based this finding not only on the delay in presenting her claim in Canada but on inconsistencies in her evidence, her three trips back to Romania, lack of evidence regarding her daughter and her two vacations in Mexico.
[35] In Bello v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 446 (T.D.) (QL), Justice Pinard found that it was not unreasonable for a Board to find that a claimant's actions were not consistent with those of a person holding a subjective fear of persecution. At paragraph 12 he said as follows:
It is within the purview of the Board to make findings of credibility. It would appear from the case law that it is open to the Board to disbelieve an applicant's subjective fear of persecution where there has been sufficient delay in claiming refugee status. It should also be noted that in this case the applicant's subjective fear of persecution was also disbelieved on the ground that he had twice returned to the country wherein he allegedly feared persecution.
[36] As stated in Bello, supra, a Board's findings of subjective fear are integrally related to the credibility of an applicant's evidence. It is well established that credibility findings made by a Board merit a high degree of deference: Aguebor, supra. Here, the Board found the Applicant to be vague and inconsistent with her evidence and in assessing her credibility, considered the lack of documentary evidence regarding the existence of her daughter, as well as her lack of effort to obtain such evidence.
[37] In the result, I see no basis for interfering with the ultimate decision of the Board. Its errors related to matters which were not material to its decision and do not justify setting the decision aside: see Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81. Further, this case is not analogous to Haji v. Canada (Minister of Citizenship and Immigration) (2000), 192 F.T.R. 141, where the court set aside a decision of the Board where the errors were numerous and their cumulative effect was unknown so that the court had little confidence in the soundness of the decision.
[38] The application for judicial review is dismissed. There is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1771-02
STYLE OF CAUSE: PETRONELA NEGOITA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 26, 2003
REASONS FOR ORDER AND
ORDER: THE HONOURABLE MADAM JUSTICE HENEGHAN
DATED: June 20, 2003
APPEARANCES:
Lawrence Band
FOR THE APPLICANT
Rhonda Marquis
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lawrence Band
6 Adelaide St. E., 10th Floor
Toronto, Ontario M5C 1H6
Telephone No.: 416-363-4143
Fax No.: 416-366-1799
FOR THE APPLICANT
Rhonda Marquis
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto ON M5X 1K6
Telephone No.: 416-952-4640
Fax No.: 416-954-8982
FOR THE RESPONDENT
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