Date: 20051028
Docket: IMM-2377-05
Citation: 2005 FC 1467
Toronto, Ontario, October 28, 2005
PRESENT: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
DANIEL NISTOR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated March 31, 2005, which determined that the applicant is not a Convention refugee or a person in need of protection.
[2] The applicant seeks:
(a) an order for certiorari quashing the Board's decision and remitting the matter for redetermination by a differently constituted panel; and
(b) costs of the application.
Background
[3] Daniel Nistor (the "applicant") is a citizen of Romania. He is 28 years old, has a grade 8 education and has worked as a seasonal day labourer in agriculture. He testified that both his parents are of Roma ethnicity. His parents work in agriculture and also in the manufacture of clay adobes that are used in the construction of houses. His family belongs to the Lahiu clan. The applicant testified that he knows the Romanian language, but is more fluent in Romani, which is the language of the Roma people.
[4] The applicant alleged that he was persecuted in Romania because of his Roma ethnicity. While at school, he was subjected to discrimination by his peers. After he left school, he experienced mistreatment at the hands of the Romanian police. On numerous occasions he alleged that he was arrested, detained, harassed, beaten and tortured by the police, and accused of false charges.
[5] In the narrative portion of his Personal Information Form ("PIF"), the applicant described the following incidents. From May 1 to 8, 1998, he and his friend were detained at police headquarters in Constanta, after police found electrical plugs and neon lights in the trunk of the car in which they were driving. The applicant alleged that he was getting a ride from his friend and did not know where the electrical plugs and lights came from. At the police station, the applicant and his friend were tortured, deprived of food and water, and forced to confess to stealing the electrical plugs and lights.
[6] Approximately one month later, the police commenced making raids at the applicant's house, about seven to eight times a month. On each raid, the police took the applicant to police headquarters, beat him, accused him of various crimes, and threatened to kill him and his family. On April 22, 1999, the applicant attempted to flee Romania with his friend by boarding a ship loaded with sodium in the Constanta harbour. After about three days of hiding on the ship in the harbour, the applicant and his friend were discovered by police and brought to police headquarters. There they were detained for four days, and interrogated, beaten and tortured. They were charged and fined for illegally attempting to cross the border.
[7] The police raids continued after the applicant returned home. He was summoned to court to explain his earlier court file regarding the theft of the electrical plugs and neon lights.
[8] On April 14, 2000, the applicant was arrested and locked in jail for one year, where he was beaten continuously, forced to cut his own skin, deprived of water and put into isolation.
[9] The police raids continued at the applicant's home after he was released from jail in April 2001. Whenever the beatings became too much to bear, the applicant fled with his friend to Ialomita, a county of Romania.
[10] On June 4, 2004, the applicant and three of his friends boarded a ship in the Constanta harbour and hid in between the pipes at the bottom of the ship. From the waybills, they knew the ship was destined for Canada. On about June 8, 2004, the ship departed the harbour. The four stowaways remained hidden until the crew of the ship discovered them on June 21, 2004 and locked them in the kitchen. Upon arriving in Canada, they were surrendered to the Canadian authorities. The applicant claimed refugee protection in Canada.
[11] The applicant submitted documents from the Romanian police showing that he had been detained and accused of various charges and ordered to pay judicial fines. He also submitted hospital records indicating that he had been badly beaten. To corroborate his Roma background, the applicant submitted his Roma Party membership card.
[12] The Board submitted documents relating to Romanian country conditions and Roma culture. The documents describe the persecution of the Roma people in Romania by the authorities, and the different characteristics of the Roma clans in Romania.
[13] The applicant's claim was heard in Saskatoon, Saskatchewan on February 16, 2005 with the assistance of a Romanian translator. The Board dismissed his claim in a decision dated March 31, 2005. This is the judicial review of that decision.
Reasons of the Board
[14] The Board accepted that the applicant was a national of Romania. However, the Board found the applicant's allegation of Roma ethnicity to be implausible because he knew very little about two well-known Roma clans, the Rudari and the Corbeni. The Board reasoned as follows, at pages 2 to 3:
. . . I considered the documentary evidence before me on Roma and Roma clans in Romania. This documentary evidence provides the following information. Romanian Roma constitute approximately forty different groups including Caldari (tinsmiths and coppersmiths), Fierarai (blacksmiths), Usari (bear trainers), Grastari (horse dealers) and Lautari (musicians). Many have forgone the more traditional nomadic lifestyle under duress rather than by choice. Cultural amalgamation has also been widespread among the various groups, yet divisions still exist and are extremely important within the communities themselves.
(. . .)
Based upon the foregoing documentary evidence, at the hearing, the claimant was questioned concerning his Roma ethnicity and his knowledge of the various Roma clans in Romania. The claimant was asked to provide his knowledge of the Rudari Roma clan in Romania. He testified that what members of the Rudari clan do is different as they carry on commerce with animals by buying and selling animals. He further testified that members of the Rudari clan wear the same traditional gypsy clothes as other Roma clan, and that his brother-in-law is a member of the Rudari clan and he is able to speak the Romani language with him. Again, contrary to the claimant's testimony concerning the Rudari clan, the documentary evidence before me indicates that the Rudari Roma clan still constitutes a large Roma grouping in Romania, were at one time slave woodworkers and they did not and never had spoken a Romani language.
The claimant was asked whether he had heard of the Corbeni Roma clan in Romania. He testified that he had heard of this clan, that this clan came from the northern party of Romania and that members of this clan make things like pots and work with wood. The documentary evidence on the Corbeni clan was drawn to the claimant's attention respecting the clan's formidable reputation as gangsters in Romania. He testified that he did not know very much about this Roma clan because members of this clan lived a long way from where he lived in Romania and they didn't travel to his area of Romania very often. The claimant alleges that parents are both of Roma ethnicity, and he was therefore born a Roma. Given these allegations and the documentary evidence before me, I find it implausible that the claimant would have no knowledge of well-known Romanian Roma clans such as the Rudari and Corbeni clans if he were in fact of Roman ethnicity as is alleged. In his PIF narrative and testimony, the claimant alleges that the traditional occupation of his parents' Roma clan was the manufacturing of clay adobes used in the construction of houses and they also worked in agriculture. However, there is no mention in the documentary evidence before me on Roma clans of any clan whose traditional work involved the manufacturing of clay for use in the construction of houses.
[15] The Board also considered the applicant's Roma Party membership card. The Board found that "the documentary evidence before me on the Roma Party and other Roma-based political parties indicates that it would have been reasonable for the claimant to contact his brother, sister or parents in Romania to obtain written verification of his Roma ethnicity from one of these Roma associations." Despite being put on notice from the Board to provide corroborative evidence to the elements of the claim, the claimant had made no effort to obtain and provide corroborative evidence of his alleged Roma ethnicity. There was no evidence that it is a requirement to be of Roma ethnicity to be a member of the Roma Party. The Board therefore found that given the claimant's "clear lack of knowledge of Roma in Romania and the documentary evidence before [the Board]", on a balance of probabilities "the claimant procured this Roma Party membership card in an attempt to embellish his refugee protection claim".
[16] The Board concluded, at page 5:
. . .Given the claimant's allegations that he is of Roma ethnicity, I find it implausible that he would not be more knowledgeable of his own and other Roma clans in Romania. For the foregoing reasons, I do not believe that the claimant is of Roma ethnicity as is alleged. I find this allegation to be an attempt by the claimant to embellish his entire refugee protection claim.
[17] Therefore, since the applicant was determined not to be of Roma ethnicity, the Board held that there was no serious possibility that the applicant would be subject to persecution on an enumerated Convention ground if he were to return to Romania.
Issues
[18] The issues as framed by the applicant are:
- Did the applicant have an opportunity to present his case before an impartial decision-maker?
- Did the reasons for the Board's decision raise a reasonable apprehension of bias in that the reasons are identical to those in another case and substantially similar to the reasons in two other cases, all four of which were heard by the same decision-maker in Saskatoon?
- Did the Board base its decision on findings of fact that it made in a perverse and capricious manner, without regard for the material before it?
- Did the Board err in law in making its decision, in that it failed to have regard to the totality of the evidence properly before it?
[19] I would reframe the issues as follows:
- Do the Board's reasons raise a reasonable apprehension of bias?
- Did the Board err in finding that the applicant was neither a Convention refugee nor a person in need of protection?
Applicant's Submissions
[20] With respect to the issue of bias, the applicant submitted that the Board had a demonstrated bias against Roma claimants and used knowledge of Roma occupational groups to refuse the applicant's claim as well as others' claims. The applicant came to Canada with a fellow Roma clansman, Valerica Cretu. They were represented by the same lawyer, Cheryllynn Klassen. The applicant had his hearing on February 16, 2005 and Cretu had his hearing on February 17, 2005. The hearings were held before the same Board member. After these hearings, the Board issued almost identical decisions for the applicant and Cretu. These decisions made no reference to the incidents of harassment and persecution suffered by the claimants. The applicant submitted that the duplication of reasons suggested an apprehension of bias against Roma claimants.
[21] With respect to the issue of substantive errors, the applicant submitted that the appropriate standard of review for findings of credibility is patent unreasonableness. The applicant submitted that the Board erred in finding that he was not of Roma ethnicity, as the Board made a number of findings of fact that were patently unreasonable. The applicant testified about the traditions, superstitions, and daily living customs that are unique to his Roma family and clan. The applicant submitted that the Board ignored this evidence because it was not questioned by the Board nor commented upon in the Board's reasons for the decision. Thus, the applicant submitted that the decision was patently unreasonable for ignoring this evidence.
[22] The applicant testified that he speaks Romani fluently and has difficulties with the Romanian language. He demonstrated his Romani capabilities orally at the hearing. The translator had obvious difficulties putting the applicant's statements into English. The applicant submitted that the documentary evidence suggested that if a person speaks Romani fluently, the probability of him being Roma exceeds 99%. The applicant submitted that the Board ignored this evidence.
[23] The Board recited documentary evidence on the Roma culture and traditional occupations of certain clans of Roma people. The applicant submitted that the documentary evidence referred to traditional occupations. The applicant submitted that his limited knowledge of the traditional occupations of other clans was appropriate given his background, the situation of Roma in Romania and the applicant's explanations. The documentary evidence indicated that the Roma historically had traditional occupations, but these occupations were suppressed during the Communist regime and many Roma moved to agricultural jobs. The applicant testified that he had a grade 8 education, his education was interrupted and painful, and he only knew a bit of Gypsy history. Therefore, the applicant submitted that it was patently unreasonable for the Board to conclude that because of the applicant's limited knowledge of other Roma clans in Romania, the applicant was not of Roma ethnicity.
[24] The applicant testified that his parents worked in the manufacturing of clay adobes used in the construction of houses, and also in agriculture. The Board referred to this statement in its reasons as an alleged "traditional" occupation, and then reasoned, "there is no mention in the documentary evidence of Roma clans whose traditional work involved the manufacturing of clay for use in the construction of houses." The applicant submitted that it was capricious of the Board to use documentary evidence in this way to infer that the applicant is not Roma. The documentary evidence indicated that there are over 40 different clans in Romania. However, less than 30 of these clans were mentioned in the documentary evidence.
[25] The applicant submitted that the conclusion reached by the Board that he procured his "Roma Party membership card in an attempt to embellish his refugee protection claim" could only have been arrived at by ignoring all the evidence given by the applicant with respect to his knowledge of Roma in Romania. Thus, the applicant submitted that this conclusion is patently unreasonable.
Respondent's Submissions
[26] With respect to the issue of bias, the respondent submitted that any alleged factual errors in another case (the Cretu case) are of no relevance to the applicant. Further, the applicant did not raise any issue of bias with the Board at the hearing.
[27] With respect to the issue of substantive errors, the respondent submitted that the appropriate standard of review for findings of credibility is patent unreasonableness. The respondent submitted that the Board's decision was not patently unreasonable as it was supported by the evidence and it was not perverse, capricious, absurd, or made in bad faith.
[28] The respondent submitted that it would not be patently unreasonable to expect a person growing up in a traditional culture to know something about the culture. The applicant's rudimentary knowledge of traditional Roma culture was inconsistent with a person of Roman ethnicity and undermined the applicant's credibility.
[29] The respondent submitted that the applicant did not obtain any documentation identifying himself as Roma. Therefore the applicant's failure to attempt to support his claim when notified to do so undermined his credibility.
Relevant Statutory Provisions
[30] Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the "Act") provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
[31] Section 96 and subsection 97(1) of the Act define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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Standard of Review
[32] The applicable standard of review for findings of fact is patent unreasonableness (see Tubacos v. Canada(Minister of Citizenship and Immigration), 2002 FCT 225, (2002) 23 Imm. L.R. (3d) 60(FCTD) at paragraph 7.
[33] I propose to deal first with Issue 2.
[34] Issue 2
Did the Board err in finding that the applicant was neither a Convention refugee nor a person in need of protection?
The Board did not accept that the applicant was of Roma ethnicity primarily because his knowledge of the current occupations of the Rudari Roma and Corbeni Roma clans did not agree with the documentary evidence. There are approximately 40 different Roma clans in Romania. The applicant belonged to the Lahiu clan. The applicant's testimony was about the Rudari's and Corbeni's current occupations or way of life while the documentary evidence referred to their traditional way of life. There was evidence to indicate many Roma clans, due to pressure, had to change their way of life.
[35] The applicant gave the following evidence concerning his own Roma clan. Pages 25 to 27 of the transcript of the hearing record the following exchange:
PRESIDING MEMBER: Now we're back on the record. The same people are present.
Ms. Klassen, do you have any questions for Mr. Nistor?
MS. KLASSEN: Yes, I'd like to ask Mr. Nistor some questions on his ethnicity.
DIRECT EXAMINATION BY MS. KLASSEN:
Q. Is there any specific customs, traditions or beliefs that your family or clan practices that are unique to your Roma ethnicity?
A. My family believes in God and the devil. We believe in the swearing and the work of the devil. We have a kind of swearing that it's not common to anybody else. In case somebody -- the something is not credible, we are going to a river. We are going -- that particular family which had the problem goes to this water and the bullibasha (phonetic) it's coming as well. And the person which is guilty or they want to prove if it's guilty or not it's entering the water only with the feet. They are taking a piece of meat from pork -- a pig. And three large candles are lighted. One ring of -- a wedding ring it's taken and placed in the person's mouth and that's where the person is swearing on the family and the children. And this case, when the person swears he is 100 percent credible and if the person is guilty will not have the courage to do such a thing. We believe in this thing until we die.
Q. And what about superstitions?
A. For example, on a big day the men of the house also with the whole family, they must have in their pockets bread and salt, a red thread on the hand, this is to bring good luck. All the younger folks, girls and boys as well, they are wearing this red thread to the hand to have good luck and not be hit by the evil eye and the swearings.
Q. What about daily living customs? Is there any special Roma food preparation or washing, traditions?
A. Every day we have to prepare fresh food. The leftovers they are not eaten the next day. It must be thrown away. For everything that I know is that the men is always leading the way and it's walking in front of the woman, she's always behind. And we believe that the woman is walking in front of us she's going to bring bad luck. And the swearing and the balaka (phonetic), it's coming towards us if the woman walks ahead of us.
Never in the morning a woman cannot cross in front of a man. A woman, a pregnant woman is not allowed to go in the kitchen and prepare food. And more than that, she's not allowed to see other men and other men cannot look at her as well. She's sitting in a place and she's visited only by women. And after she gives birth, for about 40 days the woman is not allowed to see a man.
Q. Thank you. You testified earlier that you speak Romani fluently.
A. Yes, that's for sure. And before I used to have so many problems I was a singer and I was singing in Gypsy language to the baptism and the weddings. The Gypsy from my family and those from our quarters they are saying that I'm really gifted and I can sing. And normally on this kind of occasions of weddings and baptism I'm making all the Gypsies happy.
Q. Would you like to give us some examples of Romani language? If you can say the Romani word and then the Romanian and the translator can translate it for us into English.
A. Yes. Shall I give some examples?
Q. Yes.
A. Socarez (phonetic), How are you. Beshau (phonetic), I sit.
INTERPRETER: I'm sorry, I don't understand.
CLAIMANT: I want to go to the market. For example, when Christmas is coming back home in Romania, we are killing a big pig, pork. And I can say --
INTERPRETER: I'm sorry, I did not understand what he said.
CLAIMANT: And I have to go and say to my father, Father, today it's a big day and we have to sacrifice the pig. I can speak with a Gypsy person with no problem whatsoever. I can discuss anything. I can say any word you want me to say.
BY MS. KLASSEN:
Q. How do you say "water"?
A. Pai. He is giving the colours. Lolo, it's red. Parno (phonetic), it's white. Calo (phonetic) is black. Bali (phonetic), it's virgin girl. Anything you want me to say in Gypsy language I can tell you.
Yak, for example, it's -- Yak, it's the eyes. And moi (phonetic), it's mouth. Pendro (phonetic) is leg. Putoi (phonetic), it's the heart. Churo (phonetic) is the head.
Q. That's fine. Thank you.
A. I can tell you as many words as you want. I can talk with somebody. I can have an (inaudible) conversation no problem.
Q. That's not required right now.
MS. KLASSEN: I think that's -- I'm finished with my questions.
[36] There was documentary evidence before the Board which stated that if a person speaks Romani, there is a 99.9% chance that the person is a Roma. In the present case, the Board made no reference to the applicant's ability to speak Romani which is obvious from the transcript quoted above.
[37] I am of the opinion that the Board's decision was patently unreasonable because it failed to consider the applicant's testimony relating to his own clan and his ability to speak Romani, both which support the applicant's Roma ethnicity. Instead, the Board found that the applicant's testimony about the Rudari and Corbeni clans did not accord with the documentary evidence. However, the documentary evidence referred to traditional ways of life of these clans, while the applicant spoke of the current ways of life of these clans. Based on the fact that many clans were found to change their way of life, I do not necessarily see any such conflict. Consequently, the Board should have considered the applicant's testimony of his own clan and his ability to speak Romani in order to reach a decision on whether he was of Roma ethnicity.
[38] Because of my finding on Issue 2, I need not deal with the remaining issues.
[39] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[40] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
"John A. O'Keefe"
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