Date: 20050531
Docket: IMM-2747-02
Neutral citation: 2005 FC 783
Toronto, Ontario, May 31st, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
ISTVAN VODICS
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Convention Refugee Determination Division ("CRDD") acting under the Immigration Act, R.S.C. 1985, c. I-2, ("the Act") applied ethnic stereotypes to find that the Applicant is not Romany, as he so claims. For the reasons which follow, I find that the decision under review is made in manifest error.
[2] The Applicant is a 24-year-old male citizen of Hungary who claims refugee protection on the ground of his Romany ethnicity. In the presentation of his claim before the CRDD, the Applicant testified to his ethnicity, and provided evidence that, because he is a Rom, he has suffered persecution at the hands of the ethnic Hungarian population in Hungary. Thus, the issue that the CRDD was called upon to decide is whether the Applicant would suffer more than a mere possibility of being persecuted should he return to Hungary.
[3] An important feature of the Applicant's own evidence supporting his claim is that, while to some observers he might not meet the stereotypical Romany image either in his appearance or his life situation, he has nevertheless experienced persecution by ethnic Hungarians who have identified him as a Rom. This experience is the basis of his subjective and objective fear of return.
[4] In its decision of May 21, 2002, the two member panel of the CRDD chose not to believe the Applicant's sworn testimony that he is Romany. Indeed, in a disjointed mixture of considerations, the CRDD found that, on a balance of probabilities, the Applicant is ethnic Hungarian. In reaching this conclusion, I find that the CRDD wrongly and unfairly applied evidence of perception of the Applicant's ethnicity to effectively find that he is lying when he swears he is Romany. To disbelieve someone about his or her ethnicity, which is a critical feature of his or her humanity, is a most serious matter requiring extreme caution and careful deliberation. In my opinion, the CRDD failed to meet both requirements.
[5] It is important to mention that in its oral decision delivered after the hearing and later transcribed, the CRDD only briefly investigated the Applicant's experiences of discrimination as a child and did not ask about what he fears now as an adult.
[6] In his PIF, the Applicant describes suffering in his early life from harassment, ridicule, and beatings because he is a Rom (Tribunal Record, pp.20-22). This discrimination, if not persecution, culminated in recent events which caused the Applicant to leave Hungary as described in the following passage from his PIF:
I finally got a job at a McDonald's. The McDonald's is not Hungarian owned and because of the Discrimination Act I was able to get the job. Around the same time I inherited my grandparents apartment [sic]. I thought my life was finally looking up, but my happiness did not last long. I came home one day to find that my apartment door had graffitti all over it and it said "GYPSY GET OUT". My windows were broken. I stopped fixing them because there was no point. As soon as I did they would be broken again. Sometimes I would find a gang of people waiting outside McDonald's when I got off work. They would hurl insults at me and scream profanities. I endured all this because I had a job and I knew I was lucky. I was working at McDonald's for two and a half years. I was eventually promoted to manager. I was very proud of my self [sic]. But it was too good to be true. There was a break in at the McDonald's and the people who were harassing me went to my boss and said I was responsible. My boss said that he did not want any trouble and that me working there would cause trouble so he fired me. The same week my apartment was broken into and ransacked. On the walls was written, Next time we will kill you [sic]. I had no friends [and] I could not go to the police. I did not know what to do. I sold my apartment, and went into hiding. I met someone sympathetic to my plight and told me they knew where I could get a passport.
(Tribunal Record, p.23)
[7] Instead of considering the value of this past evidence in determining the prospective need for refugee protection, the CRDD chose to focus its entire decision on the Applicant's ethnicity, and to reject the Applicant's evidence of his ethnicity solely on the basis of implausibility findings concerning physical, cultural and economic factors, upon which subjective conclusions were reached. In my opinion, the CRDD's decision is patently unreasonable because it fails to apply a well defined body of law respecting the making of proper credibility findings.
A. The law
[8] Credibility is at issue in every refugee claim. Even though credibility findings are "the heartland of the [CRDD's] jurisdiction" (R.K.L. v. Canada (M.C.I.), 2003 F.C.J. 162), and, as a result, attract the deferential standard of review of patent unreasonableness (Aguebor v. Canada (M.E.I.), [1993] F.C.J. 1992), they must be made according to law. In addition, as outlined in Section D below, the decision is also made in reviewable error because the CRDD failed to decide whether the test for prospective fear of persecution was met.
[9] In my opinion, the CRDD failed to apply the existing law in four ways: failure to adhere to the principle that sworn testimony is presumed to be truthful, and a finding to the contrary must be made for specific reasons; failure to give clear reasons in making a negative credibility finding; failure to provide due process by providing a proper opportunity to refute specialized knowledge of the decision-maker before such knowledge is used in reaching a decision; and the use of unfair stereotypes in the decision-making process.
1. The application of the presumption of truthfulness
[10] With respect to making negative credibility findings in general, and implausibility findings in particular, Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, states the standard to be followed:
6. The tribunal adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness. But the tribunal does not apply the Maldonado principle to this applicant, and repeatedly disregards his testimony, holding that much of it appears to it to be implausible. Additionally, the tribunal often substitutes its own version of events without evidence to support its conclusions.
7. A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist.__However, plausibility findings should be made only__in the clearest of cases,_i.e., if__the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[Emphasis added]
[11] It is not difficult to understand that, to be fair to a person who swears to tell the truth, concrete reasons supported by cogent evidence must exist before the person is disbelieved. Let us be clear. To say that someone is not credible is to say that they are lying. Therefore, to be fair, a decision-maker must be able to articulate why he or she is suspicious of the sworn testimony, and, unless this can be done, suspicion cannot be applied in reaching a conclusion. The benefit of any unsupported doubt must go to the person giving the evidence.
2. The provision of clear reasons
[12] The Federal Court of Appeal impresses a decision-making duty on the CRDD in Hilo v. Canada (M.E.I.) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.) at paragraph 6 as follows:
In my view, the board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The board's credibility assessment, quoted supra, is defective because it is couched in vague and general terms.
In addition, as expressed in Leung v. Canada (M.E.I.) (1994), 81 F.T.R. 303 at paragraph 14, the duty to be clear is linked to a requirement to state the evidence:
The Board is under a very clear duty to justify its credibility finding with specific and clear reference to the evidence.
[Emphasis added]
3. The use of specialized knowledge
[13] The standard for making implausibility findings, as stated by Justice Muldoon in Valtchev, requires that unmet reasonable expectations must exist before a refugee claimant's evidence is found implausible. It is only fair that, since the reasonable expectations which exist in the mind of the decision-maker constitute evidence to be used in reaching a decision, the expectations should be exposed to the claimant prior to the decision being made so that the claimant might have an opportunity to rebut them with evidence. Indeed, this due process principle is now codified in the specialized knowledge provision of Rule 18 of the Refugee Protection Division Rules, Can. Reg. 2002-228:
|
SPECIALIZED KNOWLEDGE
Notice to the parties
18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.
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CONNAISSANCES SPÉCIALISÉES
Avis aux parties
18. Avant d'utiliser un renseignement ou une opinion qui est du ressort de sa spécialisation, la Section en avise le demandeur d'asile ou la personne protégée et le ministre -- si celui-ci est présent à l'audience -- et leur donne la possibilité de :
a) faire des observations sur la fiabilité et l'utilisation du renseignement ou de l'opinion;
b) fournir des éléments de preuve à l'appui de leurs observations.
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[Emphasis added]
[14] Even though Rule 18 did not exist at the time the decision under review was made, on the basis of the authority of Valtchev, I find that the practice now specified in Rule 18 was required as an element of due process at the time the CRDD's decision was made. As a result, for ease of reference, in the analysis of the CRDD's decision which follows, I refer to the requirement to follow the due process practice as the requirement to follow the specialized knowledge provision of Rule 18.
4. The use of stereotypes
[15] The use of specialized knowledge in the decision-making process, which is, in fact, the use of acquired personal knowledge on the part of the decision-maker, is acceptable, but with a very important limit when it comes to the use of stereotypes. This point is addressed by Justices L'Heureux-Dubé and McLachlin (as she then was) in R. v. R.D.S., [1997] 3 S.C.R. 484:
_29. In our view, the test for reasonable apprehension of bias established in the jurisprudence is reflective of the reality that while judges can never be neutral, in the sense of purely objective, they can and must strive for impartiality. It therefore recognizes as inevitable and appropriate that the differing experiences of judges assist them in their decision-making process and will be reflected in their judgments, so long as those experiences are relevant to the cases, are not based on inappropriate stereotypes, and do not prevent a fair and just determination of the cases based on the facts in evidence.
In R.D.S., the test for reasonable apprehension of bias of a judge was the focus; however, the commentary concerning the concepts of neutrality, impartiality, and the caution about use of stereotypes is also relevant to a CRDD decision-maker.
[16] A "stereotype" is defined in the Canadian Oxford Dictionary, 2004, as a preconceived, standardized, and oversimplified impression of the characteristics which typify a person or situation. The danger in applying a stereotype is that the person who is the exception to the oversimplified impression is not protected from the erroneous application of the impression.
[17] It seems obvious that, when it comes to the CRDD's decision-making on the issue of ethnicity, the fact that a particular refugee claimant does not fit a particular stereotypical profile cannot be used against him or her without a level of certainty being reached that, on the evidence, the person should be expected to meet the stereotypical profile. I think it is fair to say that to meet this level of certainty is very difficult, if not impossible. Indeed, prior to the decision being rendered in the present case, the use of stereotypes was the subject of critical comment by Justice Kelen in Tubacos v. Canada (M.C.I.), [2002] F.C.J. 290, as follows:
ANALYSIS
12. The CRDD decision that the applicant is not Roma because he does not meet the stereotypical profile of a Roma is patently unreasonable and warrants the intervention of the Court.__The unreasonableness of the decision__is readily identifiable on the face of the record. The CRDD ought not conclude that a person is not Roma because he does not meet a profile which includes dark-skinned, no education, no employment, large families and_marrying young.
Dark-Skinned
13. The Roma profile of dark skin is perverse on the face of the record.__Documentary evidence from the Immigration and Refugee Board itself cites expert evidence that Roma have a variety of complexions because of intermarriage caused by the Romanian history of forcing the Roma people into slavery. This evidence, in the affidavit of the applicant at Paragraph 22 and Exhibit "F", states:
_Roma, we are after all an Indian people and many Roma are dark.__This [is] a factor in identification which I'm working my way towards here because after seven and a half centuries in the west, obviously there's been intermarriage, forced sometimes in the case of the slave, but nevertheless you find Roma of all complexions now. So physical appearance isn't always a factor but it is one factor.
Education, Employment and Size of Family
14. The CRDD decision that the applicant was not Roma because he did not accord with the profile, ie. no education, unemployment and large families, was addressed by the evidence of the applicant.__However, the CRDD ignored his explanation.
Knowledge about the Roma People
15. The CRDD found that the applicant lacked knowledge about the Roma people.__This finding is also patently unreasonable based on the applicant's evidence about Roma culture and traditions.__The CRDD ignored this evidence.
Membership In the Roma Party
16. The CRDD found that the applicant was not a member of the Roma Party.__This finding is patently unreasonable in light of the viva voce evidence of the applicant and the documentary evidence which included the applicant's membership card in the Party and a letter from the President of the Party certifying that the applicant is Roma.
Persecution
17. The CRDD dismissed the applicant's account of persecution as not credible, because the CRDD found the applicant not credible regarding his ethnicity.__In view of my finding, there is no valid finding on the applicant's fear of persecution.
Therefore, where sworn testimony of ethnicity is presumed to be true, without the required level of certainty being attained, the failure of the person giving the evidence to meet a decision-maker's understanding of an ethnic stereotype does not constitute reliable evidence which can be used to rebut the presumption. That is, the mere fact that a person is the exception to an ethnic profile, even on a number of factors, does not provide a sound basis for deciding that he or she is not who he or she claims to be. It might very well be that, where there is no admissible and reliable evidence contrary to the claim of ethnicity, such as a reliable evaluation of a person's ethnic lineage or admissions or other direct contradicting evidence, the person's own sworn statement of his or her ethnic identity must be accepted.
B. The CRDD's decision
[18] Before quoting the CRDD's decision, a footnote is needed with respect to terminology.
[19] With one exception in paragraph 3 of its decision, the CRDD refers to the Applicant by using the term "Roma" to describe his ethnicity and indicators of his ethnicity. For example, the CRDD uses the following language: "the basis of your claim is your Roma ethnicity"; "you allege that your mother is Roma"; "the panel has specialized knowledge of some specific Roma names"; and "you do not speak the Roma language".
[20] However, according to the Canadian Oxford Dictionary 2004, "Roma" is the plural form of "Rom", which refers to a person who is a gypsy, and the adjective form of Roma is "Romany". Thus, applying this terminology, the examples just quoted from the CRDD's decision would read this way: "the basis of your claim is your Romany ethnicity"; "you allege that your mother is a Rom"; "the panel has specialized knowledge of some specific Romany names"; and "you do not speak the Romany language".
[21] While the terminology used by the CRDD is in common use, I have applied the Canadian Oxford Dictionary 2004 terminology in these reasons.
[22] In rendering its decision, the CRDD relied on the Applicant's Personal Information Form ("PIF"), documentary evidence of in-country conditions in Hungary, and the Applicant's sworn oral testimony. The entire decision rendered by CRDD Members Siddiqui and Tahiri is quoted here, and, since the findings made are disbursed in a number of paragraphs, for ease of reference in the analysis of the decision which follows in Section C of these reasons, the paragraphs are numbered:
[1] Siddiqui: Mr. Vodics, we have had an opportunity to consider the evidence in your claim and we are prepared to make a decision. Unfortunately, the decision is a negative one.
[2] The basis of your claim in your Roma ethnicity. You are a 24-year-old citizen of Hungary and your PIF alleges incidents based on your ethnicity. The panel asked Counsel and the Refugee Claim Officer to question you on that issue, as it is the core of your claim. The onus is on the claimant to establish on a balance of probabilities a well-founded fear of persecution for a Convention ground.
[3] The panel finds that there is insufficient credible or trustworthy evidence to determine that you are a Rom.
[4] You allege that your mother is Roma and that your father is half Roma. You state that the characteristics by which you would [be] perceived to be Roma are: your clothes, your accent, your manner of walk, as well as by association. You stated that your mother visited you at the institution you have lived in since you were four years old, and that your friends were Roma.
[5] I will begin with your name. You[r] last name is Vodics, which you state is of Yugoslavian-Serb ethnicity. You do not know the origins of your mother's name, and you are not aware if Pohancsenyi is a Roma name. The panel has specialized knowledge on some specific Roma names, such as Horvath, Kalampour, Lazloni which are typically Roma, or considered typically Roma. We acknowledge that there are always exceptions. However, the panel notes that your mother's maiden name is not typically Roma.
[6] You state that among your entire family your mother is the most visibly Roma, in that she has dark hair and dark skin. However, you have not provided us with a photograph of your mother that you say you have with you in Canada. Credible evidence does not require corroboration, however, a claimant is expected to appear at a hearing with all reasonably available evidence to establish his claim. The panel draws a negative inference from the absence of your mother's photograph, which the panel believes would have been reasonable for you to produce at the hearing.
[7] The panel notes that you do not speak the Roma language. You do not practise [sic] the traditions of the Roma. You stated that this is not surprising because you were taken into an institution at the age of four. However, by all the other characteristics that one would assess whether someone is a Roma, you appear to be the exception.
[8] Your level of education is 14 years. Generally, the majority of Roma in Hungary have an elementary education. The size of your family is relatively smaller than most Roma families. You have had employment since you left school, rising to become a manager at McDonald's, which is also an unusual. The documents indicate high unemployment rates among Roma. You further have very little knowledge of any Roma public figures. The area in Budapest that you lived in is not known to the Board as being specifically Roma district.
[9] In terms of how you would be perceived to be Roma, you have conceded that you are very fair skinned. You stated that your hair is brown and your eyes are brown. The panel had heard many claims from ethnic Hungarians who also have brown hair and brown eyes. These characteristics are not uniquely Roma.
[10] You stated that you were perceived to be Roma by the clothes you wore - tracksuits and a colourful type of slip-on shoe/sandal. You stated that the aforementioned clothes were given to you by the institution at the age of about 10 or 11. However, you further stated that these clothes were given both to Hungarian and Roma children. Given your testimony the panel is not satisfied you would be perceived as Roma by your apparel. You alleged that your accent or the inflection of your speech would indicate that you are Roma. The panel is not satisfied that you would have such an inflection given that you have allegedly been in a Hungarian institution since you were four years old and were educated by Hungarian educators. As to your manner of walk and the "loose" way in which you move, the panel is of the opinion that those characteristics are a weak basis on which to establish ethnicity. The panel also notes that the very characteristics that you say identify you as Roma did not stand you in good stead when you allegedly attempted to join a Roma music group. The group considered you to be white.
[11] The panel is aware of the documentary evidence that there are some Roma who are fair-skinned and there are some Roma who also have broken the barriers of discrimination. However, the panel believed that the preponderance of evidence in your claim, does not on a balance of probabilities establish that you are Roma. In fact, in the panel's opinion, the evidence points to the probability that you are in fact Hungarian.
[12] Accordingly, as the very basis of your claim has not been established - you have not established, on a balance of probabilities, that you are a Roma - each member of the Refugee Division who heard this claim is of the opinion that you are not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that you are a Convention refugee.
[13] Accordingly, the Refugee Division determined that you, Istvan Vodics (aka Istvan Geza Vodics) are not a Convention refugee and pursuant to Subsection 69.1(9.1) of the Immigration Act, the Refugee Division finds there was no credible basis for your claim. Before I conclude the hearing, I will ask my colleague if he has any comments.
[14] Tahiri: No, Ms. Chair. I concur with your reasoning, as well with your decision, and since we determine the claimant not to be Roma and would not be perceived as Roma, I therefore determine that he is not a Convention refugee and pursuant to Subsection 69.1(9.1) of the Immigration Act; I also find that there was no credible basis for this claim.
(Tribunal Record, pp.4-6)
C. Erroneous ethnicity findings
[23] The CRDD's decision to reject the Applicant's sworn evidence that he is Romany is based on its understanding of what is to be expected of a Rom, a standard that the Applicant did not meet. In my opinion, the application of the CRDD's understanding resulted in a number of erroneous findings made without applying the existing law as stated above.
1. Physical features
[24] The Applicant testified to his Romany ethnicity as follows:
Counsel: Do you consider yourself a gypsy?
Claimant: Yes.
Counsel: Why do you consider yourself a gypsy?
Claimant: Because my mother was a gypsy. Her parents were gypsies.
Counsel: And do the general population consider you, or in your opinion, do they consider you a gypsy?
Claimant: Yes.
Counsel: Your physical appearance that we see today, it is not the prototypical gypsy look?
Claimant: No.
Counsel: But do you have any gypsy features?
Presiding member: Could I hear what he said first? He said something?
Interpreter: Oh, mentality.
Presiding Member: Mentality?
Interpreter: And I - features. I translated the word.
Presiding Member: I know, but I first have to hear mentality. Your counsel was asking about physical features I think.
Counsel: And-
Presiding Member: And anything else.
Counsel: Correct. Then the Madam Interpreter did say the physical features, so the translation was exactly what she said. Mentality was what he said originally and then he mentioned physical features and then the interpreter asked that I meant more physical features.
Mr. Tahiri: So, his testimony is that his feature is Roma physically or?
Counsel: No, first he said mentality then he misunderstood because he didn't speak about the physical nature. I was dealing more with the physical aspects and I'll worry about the mental aspects later.
Mr. Tahiri: Okay.
Counsel: So I will soon be asking for - I just wanted him if he could give me some indication as far as what he considers his features to be that are of a physical Gypsy quality.
Claimant: My hair, my eyes, my movements, physical movements.
(Tribunal Record, pp.284-285)
[25] It is clear from this passage that the focus was on the Applicant's physical features. By not following up on the Applicant's evidence regarding his state of mind, the CRDD missed an important factor of the Applicant's ethnic identity: he mentally operates as a Rom. This factor is important to the Applicant's claim of subjective fear of persecution.
[26] There were two lines of questioning on the issue of the Applicant's physical features: whether others in Hungary would be able to identify the Applicant as Romany, and why he had not brought a photograph of his mother to the hearing.
[27] These lines of questioning are contained in the following passages:
Counsel: When you walk down a street in Budapest would there be any way somebody would be able to see that you are a gypsy or would they be able to distinguish you from another person?
Claimant: Yes.
Counsel: And how would that be?
Claimant: The way I dress, the way I walk and if I can talk then it's the style of my speech.
(Tribunal Record, p.286)
[...]
Mr. Tahiri: Okay. Now, you talked about your mother being physically Roma like.
Claimant: Yes.
Mr. Tahiri: Do you have any picture of her?
Claimant: Not here.
Presiding Member: Do you have it somewhere else?
Claimant: I think I have one or two pictures of her, yes, at home.
Presiding Member: Where is at home?
Claimant: Here in Canada.
Presiding Member: Did you think you might need it at the hearing?
Claimant: I didn't think I would need it here.
Presiding Member: Why not?
Interpreter: Pardon?
Presiding Member: Why not? Why not?
Claimant: Because I don't know how my mother would be involved in this. After all, I'm here.
Presiding Member: I understand that, but the basis of your claim is your ethnicity and anything that would go to establishing ethnicity, such as your mother's appearance, would be important to your claim. It's the claimant's responsibility to establish -
Interpreter: Pardon?
Presiding Member: It's the claimant's responsibility to put forward -
Interpreter: Pardon?
Presiding Member: Put forward all evidence required to establish a claim.
Interpreter: What?
Presiding Member: Required to establish a claim.
Mr. Tahiri: Okay. Now, sir, you stated that when you approached Roma organisation they didn't accept you as Roma?
Claimant: That is right.
Mr. Tahiri: Given all these - - your allegation about your speech pattern, your walking, your hair and eye colour why do you think you were refused by this group?
Claimant: Not everybody rejected me, only those who should have, a few people did start up to talk to me but I didn't last for long because I couldn't join this association.
Mr. Tahiri: Okay, but he - - but your testimony was that you approached this group but they did not welcome you because they did not consider you to be Roma?
Claimant: That is so, but I didn't say that nobody talked to me.
Mr. Tahiri: No, I didn't say that nobody talked to you. I said - - -
Presiding Member: Just a minute.
Mr. Tahiri: Okay, but at the least that was the impression that I got from your testimony and I stand to be corrected, but your testimony was that you approached this Roma group but they did not accept you as part of their group because you didn't look - - according to them, you didn't look like Roma.
Claimant: That is so.
Mr. Tahiri: Okay. So now, if you allege that you walk like Roma, you talk like Roma, you look like Roma and you have an unfamiliar name which in some instance may be perceived as Roma name so how come this group did not accept you as Roma?
Claimant: Because looking at my face I am white.
(Tribunal Record. pp.298-300)
[28] Thus, the Applicant testified to how a mistake might be made about his ethnicity; he does not fit the stereotype of having dark skin. Indeed, the Applicant was candid in explaining that even some Roma make this mistake. In my opinion, the Applicant's candour and the content of his statement should have given the CRDD pause; it is very possible to make a mistake when determining ethnicity.
[29] Indeed, I find that the CRDD erred in four ways in its analysis of physical features.
[30] On the evidence quoted, there is no contradiction in the Applicant's evidence that he is a Rom. The evidence only establishes that, given he is an exception to the Romany physical stereotype, there can be a contrary perception by persons viewing his physical features. The CRDD failed to recognize this critical distinction.
[31] In paragraph 9, the CRDD might be saying that it is uncertain whether the brown hair and brown eyes can be accepted as evidence that the Applicant is a Rom because these characteristics can also apply to the stereotype of ethnic Hungarians. Taken in isolation, this statement can be considered a neutral observation, but taken together with the recognition that the Applicant is fair-skinned, it appears to become an observation used to rebut the Applicant's evidence resulting in the finding in paragraph 11. Thus, while apparently accepting that the Applicant is an exception to the Romany stereotype, nevertheless, it appears that the CRDD concluded that because he has brown hair and brown eyes, he is probably ethnic Hungarian. This reasoning is impossible to understand without definitive analysis, which was not provided. As a result, I find that the CRDD failed to meet the standard set in Hilo, because it failed to be clear in reaching such an important conclusion.
[32] It is also important to note that the CRDD's suspicion that, based on its own specialized knowledge about Romany and ethnic Hungarian physical features, the Applicant is ethnic Hungarian, was not put to the Applicant contrary to Rule 18.
[33] In addition, in saying in paragraph 6 of its decision that it drew a "negative inference" from the Applicant's failure to produce his mother's photograph, what the CRDD is really saying is that the Applicant had something to hide in not producing the photograph. I find this is very unfair, and considered in context, amounts to a breach of due process.
[34] Before the hearing, the CRDD did not advise the Applicant that his ethnicity was in issue. The Applicant was only instructed to produce "relevant evidence" in a form letter outlining the steps in the refugee process (Tribunal Record, p.26). It was only at the beginning of the hearing that the CRDD advised the Applicant that his ethnicity was in issue, and it was only during the course of the hearing that the CRDD let it be known that the ethnicity of the Applicant's mother was in issue. Therefore, it is reasonable to conclude that the Applicant would have no reason to believe that the photograph would be expected to be produced.
[35] I see nothing wrong with the CRDD's wish to investigate the truth of the Applicant's ethnicity, but it must give notice of this issue, and give a claimant a chance to produce evidence on the issue. Indeed, in the absence of evidence to contradict the evidence of a claimant, it is an error for the CRDD to require documentary evidence corroborating a claimant's evidence (Ahortor v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 137 (F.C.T.D.); Lachowski v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d) 134 (F.C.T.D.); and Akhigbe v. Canada (M.C.I.), [2002] F.C.J. 332). In the present case, the only evidence that existed that the Applicant is not a Rom, existed in the minds of the CRDD members. The Applicant did not know this until the decision was rendered. If the photograph was considered to be so important, the CRDD members should have given the Applicant notice of what was in their individual minds and provided an opportunity for him to obtain it and put it into the record.
2. Movement and clothing
[36] As quoted above from the Tribunal Record at page 134, in the course of the hearing, the nature of the Applicant's walk, clothing, and style of speech became investigation points on the issue of whether he would be perceived as Romany. This is an important issue because it goes to the question of prospective fear of persecution. However, this investigation has nothing whatever to do with the truth of the Applicant's ethnicity.
[37] Assuming that the CRDD accepted the Applicant's sworn evidence that he is a Rom, it was still incumbent on the Applicant to prove his entitlement to refugee protection as a result. In deciding this question, perception might be important. However, in its decision, the CRDD never did embark on a determination of the prospective fear of persecution because it found that the Applicant is not a Rom.
[38] In paragraph 10 of its decision, the CRDD goes into the evidence in some depth to comment on whether the Applicant would be perceived as Romany by his walk, clothing, and style of speech as he testified he would be. However, in the course of this otherwise legitimate inquiry, the CRDD made the following statement which, in my opinion, is ambiguous:
As to your manner of walk and the "loose" way in which you move, the panel is of the opinion that those characteristics are a weak basis on which to establish ethnicity.
While the focus of paragraph 10 is perception, and this statement falls within this context, it cannot be disregarded that the CRDD's decision denies the Applicant's claim for refugee protection on a determination of negative credibility. Again, I find that the standard set in Hilo is not met; the CRDD failed to be clear.
3. Mother's surname
[39] Because determining a person's lineage might be useful in determining his or her ethnicity, the explanation of decision-making set out in paragraph 4 of the CRDD's decision is important. The CRDD makes the finding that the Applicant's mother's maiden name is not typically Romany, and draws on its specialized knowledge to do so. Therefore, this finding is significant in that it can be taken to be some evidence used to rebut the Applicant's sworn evidence that he is a Rom. However, in my opinion, before the finding can be considered evidence to be used in this way, the CRDD must be satisfied that its specialized knowledge is complete. The CRDD admits that it has specialized knowledge of "some specific Roma names", and, accordingly, I find it is reasonable to conclude that it does not have specific knowledge of all Romany names, if such a task is even possible to reach. The CRDD's statement that the Applicant's mother's maiden name is not typically Romany, is not relevant to the determination of the Applicant's ethnicity. It is conjecture used as evidence. As such, the CRDD should not have used it in forming its negative credibility finding.
[40] In addition, in my opinion, the inquiry into the Applicant's mother's maiden name was conducted in breach of Rule 18. The following passage is the entirety of the evidence produced at the hearing from which the CRDD made its finding at paragraph 5 of the decision. On the following cryptic questioning, the Applicant could not know of the specialized knowledge held by the CRDD members which would ultimately be used against him:
Presiding Member: All right. And your mother's name is - - -
Claimant: Bohan Chenya (ph) [Pohancsenyi].
Presiding Member: That's right, thank you.
Interpreter: Sorry?
Claimant: Bohan Chenya.
Presiding Member: Now, Bohan Chenya, what type of name is that?
Claimant: I don't know.
(Tribunal Record, p.304)
4. Romany language and traditions
[41] In paragraph 7, the CRDD is effectively finding that, because the Applicant does not speak the Romany language, and does not practice the Romany traditions, this is evidence to support the conclusion that he is not Romany.
[42] In paragraph 7, the CRDD "notes" that the Applicant does not speak the Romany language. It certainly appears that this factor was taken into consideration in the decision not to accept his sworn evidence. Indeed, the documentary evidence on the record gives a reason to expect that the Applicant would not be expected to speak the Romany language. It is apparently quite common amongst young Roma in Budapest not to speak the Romany language, and the overwhelming majority of Roma living in Hungary speak Hungarian only (Tribunal Record, p.90 and p.151). It also appears that little or no Romany culture is taught in the Hungarian school system (Tribunal Record, p.157 and p.196).
[43] As a result, I find the CRDD's suggestion that the Applicant was expected to speak the Romany language is patently unreasonable.
[44] It is important to note that the question of whether the Applicant practices Romany traditions was never put to the Applicant, and, indeed, there is no evidence on the record as to what the CRDD thought the traditions are, or why his not practising whatever they are, is relevant. In my opinion, this failure is a breach of Rule 18.
[45] In addition, while the failure to practice traditions might be shown to be relevant to the perception by others of the Applicant's ethnicity, I find it cannot be used to prove or disprove the truth of his ethnicity. Being a non-practising member of an ethnic group proves nothing about being ethnically part of that group. Again, the CRDD is not clear about what it meant in saying that in considering "all the other characteristics that one would assess whether someone is a Roma, you appear to be the exception". It is unclear whether this observation is being expressed on the truth of the Applicant's ethnicity or the perception of his ethnicity by others. Where the issue is the Applicant's credibility, the standard in Hilo does not allow this kind of ambiguity.
5. Education and work experience
[46] I find the statements respecting education and work experience in paragraph 8 of the CRDD's decision to be particularly concerning. When it says that the fact the Applicant was employed as a manager is "unusual", I believe that the CRDD is saying that the well recognized serious discrimination, possibly amounting to persecution, faced by Roma in Hungary, thus resulting in the Romany population being unable to be accomplished in education or work, is such a strong standard of expectation that an exceptional person should be viewed with suspicion when he or she swears to be a Rom. To substantiate this point, the CRDD would have had to go to a level of proof that it is virtually impossible to reach; that is, it is impossible for any Rom to be successful. This was not done.
6. Housing
[47] In paragraph 8 of its decision, the CRDD found that the Applicant lived in a non-Romany section of Budapest. In giving his evidence the Applicant clearly disputed this conclusion:
Presiding Member: What district did your family live in Budapest?
Claimant: In the 9th District, Farans (ph) Circle and it was a gypsy area.
Presiding Member: And you inherited an apartment from your grandmother. What district was that in?
Claimant: It was in the 9th District where my grandfather was. It was a settlement called (inaudible).
Presiding Member: What district what that?
Claimant: The 9th.
Presiding Member: That was also the 9th?
Claimant: Yes.
(Tribunal Record, p.306)
[48] The question is, what is the relevance of the CRDD saying "the area in Budapest that you lived in is not known to the Board as being specifically Roma"? The most reasonable conclusion is that, since the Applicant does not comply with the expected standard of housing, the Applicant would either not be a Rom, or at least not be perceived as a Rom. There are a number of problems with this statement. First, the CRDD did not put its specialized knowledge of Romany districts in Budapest on the record for the Applicant to consider before it made its finding as required by Rule 18, and second, it is unreasonable for the CRDD to draw any conclusion on the Applicant's ethnicity, or even the perception of his ethnicity, based on his housing, unless it can be proved that all Roma live in exclusive districts and the Applicant does not live in one of these districts. Since this evidence does not exist, I find it is unfair for the CRDD to draw any conclusion respecting the Applicant's housing, because to do so is engaging in unfounded speculation.
[49] It is also important to note that with respect to the evidence which was on the record, the CRDD made a mistake of fact which contributed to the erroneous nature of the finding respecting housing. In his evidence quoted above, the Applicant clearly states that he lived in the Ninth District and that it is a "gypsy area"; the CRDD apparently ignored this statement. The documentary evidence states that the Ninth District in Budapest is considered a "gypsy area", and although most gypsies tend to live near each other due to violence from non-gypsy neighbours, there is an intermixing in Budapest (Tribunal Record, p.91 and p.127).
7. Romany accent
[50] In paragraph 10, the CRDD found that the Applicant does not speak with a Romany accent, which the Applicant refuted:
Mr. Tahiri: Okay. Now, the other issue is your speech. You said you would be identified by you[r] speech pattern?
Claimant: Yes.
Mr. Tahiri: Okay, and what is in you[r] speech pattern that sets you apart from other Hungarians?
Claimant: The style as I speak, the articulation as I speak.
Presiding Member: Sir, you've been in this institution since how long?
Claimant: For 14, 15 years I was there.
Presiding Member: And since the age of what?
Claimant: From the age of four.
Presiding Member: And most of your instructors were Hungarian? Teachers.
Claimant: Yes, there was no gypsy teachers.
Presiding Member: So, I'm wondering why if you've been removed from a Roma environment that your inflection or style would be Roma?
Claimant: It stays with one. It's not easily taken away from one. It's not like learning another language.
Presiding Member: Okay.
(Tribunal Record, p.296)
If the CRDD had specialized knowledge with regard to the inflections inherent in the speaking of Hungarian by Roma, it did not say so. The CRDD appears to have reached its own conclusion, unsupported by documentary or expert evidence, that a Rom who has lived separately from his Romany family for over 14 years in a Hungarian-speaking institution would not have a discernable accent. This is a patently unreasonable finding.
8. Family size
[51] In paragraph 8 of its decision, the CRDD also found that the Applicant's family, which included four children, was small for a Romany family. The following passage is the exchange on this issue:
Presiding Member: Now, generally Roma families tend to be large. Would you say that your family is an exception to that rule?
Claimant: According to (inaudible) not a few in Hungary.
Presiding Member: That might be according to you, sir, but generally according to our documents the Roma tend to have six, seven children. Would you consider yours a smaller Roma family?
Claimant: Well, according to that then yes.
(Tribunal Record, p.304)
It appears from this passage that the Applicant did not agree with the characterization put to him that his family's size was exceptional. In my opinion, the CRDD's use of family size as a factor in deciding the Applicant's ethnicity is very unfair. Obviously, there can be many reasons for why parents across a population have, or do not have, children; having none, having four rather than two or rather than six, proves nothing. I find it is a reviewable error of fact to have included this factor.
D. The CRDD's failure to decide on the prospective fear of persecution
[52] The CRDD made a finding on the Applicant's ethnicity; it found he is ethnic Hungarian. Therefore, even if the CRDD disbelieved the Applicant's sworn evidence respecting his Romany ethnicity, it was still required to consider the remaining evidence and decide whether the test for prospective fear of persecution was met. Instead the CRDD terminated the Applicant's hearing with a finding under s.69.1(9.1) of the Act that there was no credible basis for his claim. I agree with Justice Kelen's finding in Tubacos, as quoted above, that, to only make a finding on ethnicity without evaluating and deciding the remainder of the evidence on the record, does not constitute a valid finding on the Applicant's claim of fear of persecution. That is, in the present case, even though the CRDD found the Applicant to be ethnic Hungarian, his evidence of life long suffering still required attention. This was not done.
E. Conclusion
[53] Given the identified significant errors in due process, and in law and fact, I find that the CRDD's decision was rendered in reviewable error.
ORDER
Accordingly, I set aside the CRDD's decision, and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2747-02
STYLE OF CAUSE: ISTVAN VODICS
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: APRIL 19, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: MAY 31, 2005
APPEARANCES BY:
Thomas Zwiebel FOR THE APPLICANT
Karen Dickenson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Zwiebel & Associates
North York, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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