Date: 20010823
Docket: IMM-3161-00
Neutral citation: 2001 FCT 938
BETWEEN:
PAWEL SZOSTAK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A. INTRODUCTION
[1] Pawel Szostak (the "applicant") is a twenty-one year old citizen from Poland who sought refugee status claiming a well-founded fear of persecution because of his Roma nationality, actual or perceived, should he return to Poland.
[2] The Convention Refugee Determination Division (the "tribunal") in a May 29, 2000 decision, rejected his claim. The applicant, in this judicial review application, seeks to set that decision aside.
B. THE TRIBUNAL'S DECISION
[3] The tribunal based its rejection of the applicant's claim on three fundamental reasons. First, it found, on the balance of probabilities, he was not a Polish Rom. Second, the tribunal found he presented inadequate credible and trustworthy evidence he was perceived as a Rom in Poland. Further, the tribunal found he lied to the panel when he said he had returned to Poland in the summer of 1997 after having entered Canada on June 27, 1997, with a valid Polish passport containing a valid Canadian visitor's visa. It found he stayed in Canada illegally and never did return to Poland and then came back again to this country to make a refugee claim.
(1) 1st and 2nd grounds - the applicant not a Polish Rom or perceived as one
[4] The tribunal identified a number of characteristics which it said, taken together, led it to its conclusion the applicant was not a Rom.
(i) His looks and how he is perceived
[5] The tribunal said the applicant did not look like a Rom considering his testimony both his parents and both sets of grandparents were Rom: his skin was light in pigmentation. It expressed itself this way:
The panel notes that the claimant does not look like a Rom. While he has dark brown hair, his skin is light in pigment. The panel notes that while light complexion does occur in some Polish Roms, when it does it is usually present in Roms who are of mixed ethnicity, Rom and Polish. In this claim, the claimant testified that both his parents and both sets of grand parents are Roms. The panel notes that while the skin pigmentation of a Polish Rom is not in itself a deciding factor in determining whether a claimant is or is not a Rom, the following analysis of other characteristics and aspects of the claimant's alleged Rom "ness" when added to his complexion gives the latter some relative significance in the panel's finding that he is not a Rom. Additional to this point, the claimant testified that as long as he did not wear traditional Rom clothing he could obtain work and live without racist harassment. In other words, he was perceived to be a Rom only when he wore traditional Rom clothing, or as he also testified, when he was around his home with family or Rom friends, or socializing with Rom friends at work sites or at discos. Otherwise, he was not physically identified in Poland as a Rom. [emphasis mine]
(ii) His knowledge of the Rom language
[6] Notwithstanding his testimony he was fluent in speaking the Rom language though Polish was also spoken at home, the tribunal found he was unable to communicate in that language with any degree of fluency or even with a degree of effective understanding.
[7] To arrive at this conclusion, the tribunal tested his Romany language skills through the interpreter who had written out sentences in Polish at the hearing. When asked to translate Polish sentences into Romany, the tribunal found the applicant "clearly stumbled and struggled with difficulty".
[8] When asked to converse with a Roma during the hearing, a person he had never seen before, the tribunal found "he again exhibited much hesitation and difficulty in carrying on a conversation with her". The tribunal discounted, by referencing the documentary evidence, differences in Romany dialects. It expressed itself in these terms:
The panel notes that Exhibit R-2 at Tab 3, page 3 states, according to the head of the council of Polish Roma, that 98 percent of Roma speak Romani at home, and the Ministry of the Interior states that most Polish Roma speak a variety of Romani dialects and use Polish in everyday life. On the same page it is stated that the Polska Roma dialect contains within it several other dialects including the Galicjaki Romani dialect. The witness testified she is a Galicjaki Roma. The panel finds that if the claimant is who he claims to be, a Polska Roma, he reasonably should have been more fluent and effective while conversing with the witness of the Galicjaki group in view of the fact that the Galicjaki dialect is contained within the Polska Roma dialect. Even though the witness said that the claimant was a Rom, the panel puts much more weight on the fact that the claimant was unable to communicate with any degree of fluency or even effective understanding while attempting to converse with her. The witness said she understood some words, but not sentences. The R-2 at Tab 3 does mention that there can be some problems of mutual understanding between some Roma groups but does not mention problems in understanding between Polska Roma and Galickaki Roma. [emphasis mine]
[9] The tribunal noted the applicant testified he spoke Polish without an accent. The tribunal concluded "in its experience, the vast majority of Polish Roma claimants say that it is their accent in speaking Polish that often identifies them as Roma by Poles".
(iii) The applicant's education
[10] The applicant completed eleven years of schooling. The tribunal observed that "according to [it's] specialized knowledge, this is much more education than the average Rom in Poland receives".
[11] The tribunal said the applicant testified his parents encouraged him to go to school. The tribunal noted from the documentary evidence that poverty in southern Roma where the applicant said he came from was the major reason for Roma not sending their children to school; parents are unable to afford books or clothing. The tribunal noted his testimony his father was a poor farmer trying to make a living working only on marginal land. The tribunal concluded this went to the credibility of the claimant's testimony as to whether he was a Rom.
(iv) His Polish friends
[12] The applicant testified he had two Polish as well as many Roma friends. The tribunal found "this to be questionable because the documentary evidence indicates that societal anti-Roma feelings run deep in Poland today as before".
(v) His holiday trip to Canada
[13] The tribunal found it incredible:
(a) that the applicant's father "who makes his living working marginal land, was able to send the claimant to visit a relative in Toronto" as a holiday gift before he began working;
(b) his father would "order him to return to Poland if anti-Roma conditions were so bad in Poland and in the village where the family lived";
(c) the reason his father ordered him back to Poland was because he was too young to be on his own even though he was 18 and living with a relative in Toronto. The panel said it "has specialized knowledge from hearing many Polish Roma claims, that Roms in Poland often marry in their mid to late teenage years".
(2) The lie about his returning to Poland
[14] As noted, the applicant came to Canada on a visitor's visa in June 1997 and said he returned to Poland in August of that year. The tribunal found this incredible because:
(a) there was a Polish exit stamp in his passport but no return stamp affixed by Polish officials; the tribunal found this "very unusual in view of the fact that the claimant is a citizen of Poland, and was not on the date of his alleged return, some tourist in transit".
(b) because of his testimony of being concerned about there being no re-entry stamp in his passport and that he asked around in the Roma community in Poland to find out if this lack of a stamp was the norm as well as his concern over the lack of that stamp before it was even raised by the tribunal; and
(c) the fact he would not file with the tribunal between its hearings on April 13, 2000 and October 13, 2000, three letters allegedly proving he had returned to Poland; the applicant only filed them during the second hearing.
[15] In any event, relying on its specialized knowledge, the tribunal gave these three letters no weight because it said such documents could easily be purchased and had no security features for professional assessment.
[16] The tribunal concluded the applicant never left Canada and had lived here illegally after his visa expired and made a refugee claim by mail without ever going through any airport.
C. ANALYSIS
[17] As I see it, the tribunal in drawing its findings made three classes of reviewable errors: (1) it ignored the evidence; (2) it misapprehended the evidence; and (3) it engaged in stereotyping, that is, based some of its findings without any evidentiary foundation, a gap with could not be filled by its reliance upon its specialized knowledge.
(1) Ignoring the evidence
[18] I cite the following examples of instances where the tribunal ignored the evidence: (1) he had testified extensively on certain aspects of Romany culture, namely, taboos, food, dress, weddings and funerals; (2) he would be perceived as a Roma if he were to return to the place where he lived because of the manner he dressed coming to work and the friends he associated with; (3) he was from the Kalszacy Region which had a specific dialect; (4) the person who conversed with him during the language test clearly stated at page 588 of the certified record that she had never travelled in Poland and never had contact with Roma people who speak different dialects "so maybe for me it's more difficult than normally it would be"; and (5) his uncle in Toronto paid for part of his holiday trip to Canada.
(2) The misreading of the evidence
[19] I give the following examples where the tribunal, in my view, misread the evidence: (1) the applicant did not say he spoke Polish without an accent; the thrust of his evidence was that he went for a long time to Polish schools, 11 years, so that he does speak well (fluently) but that the Romany people speak a little bit different; (2) not all Roma parents do not send their children to school: the documentary evidence shows that 20% of Romany children attend school (certified record, page 346); (3) settled Roma in the south of Poland (where the applicant came from) had fewer contacts with other groups and are consequently less familiar with other dialects.
(3) Stereotyping
[20] Justice Evans, then of the Trial Division, in Pluhar v. MCI (Docket: IMM-5334-98, August 27, 1999) and Justice Lutfy, now Associate Chief Justice, in Mitac et al. v. MCI (Docket: IMM-5988-98, September 13, 1999) both rang warning bells when reviewing decisions of the Refugee Division in cases involving claimants who said that they were Roma and where the issue was whether they were or not and where the Refugee Division based its decision on physical appearance and other characteristics of those who were before the tribunals.
[21] In Pluhar, supra, Justice Evans wrote this at paragraphs 10 and 11 of his decision:
In my opinion, the Refugee Division erred in law by effectively basing the decision on its assessment that Ms. Pluharova was not dark skinned, especially since it claimed no relevant "expertise". It is inherently dangerous for Board members to base a finding on whether people in another country would regard a claimant of a particular ethnicity solely on the basis of the member's 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 "suntanned" appearance, the panel's "common sense" was an unsufficiently reliable basis for the panel's assessment of such a sensitive matter. Skin tone cannot be characterized 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 be apparent to people in other countries.
[22] In Mitac, supra, Justice Lutfy endorsed what Justice Evans had said in Pluhar. He then focussed on the evidence that was before the tribunal and concluded that certain of the Board's findings were made without regard to the material before it. He was also critical of the absence of a Romany interpreter.
[23] In my view, cases involving Romany claimants are no different than any other case which comes before the Refugee Division where identity is an issue. Panels of the Refugee Division must make their findings of identity based on the evidence adduced, whether documentary or by way of testimony. Moreover, inferences drawn must be based on the evidence and be reasonable as was made clear in Aguebor v. MEI (1993), 160 N.R. 315 (F.C.A.).
[24] This principle ensures that generalizations, typifying, racial profiling, averaging, and preconceptions are held in check. In this case, except as to language and education, the tribunal had no documentary evidence the Court was made aware of which provided a solid basis for assessing the identity of this claimant who said he was a Roma and who testified as to the dangers of "the typical physical characteristics of the Roma in Poland" (certified record, page 541) and who expressed his concern about the dialect he spoke (certified record, page 588).
[25] In terms of language, the "test" that was put to the applicant (although the test was suggested by his counsel) was not sufficient to enable the tribunal to conclude that he was not a Roma particularly when the person who conversed with him admitted she had no experience with other Polish dialects than her own and the documentary evidence attests to those dialect difficulties for a settled Roma in southern Poland.
[26] In terms of education, I find the tribunal had no sound evidentiary basis to conclude he was not a Roma because he had 11 years' education.
[27] I find no support in the evidence that Polish Roma do not have Polish friends and would be astounded if there was evidence to that effect.
[28] I echo Justices Evans and Lutfy in Pluhar and Mitac, supra, that this tribunal had unsufficiently reliable evidence for the assessment it made that the applicant was not a Roma.
[29] Finally, I find that the tribunal committed the same kind of error when it came to the conclusion the applicant never left Canada after he came here in 1997 because his Polish passport did not contain an entry visa stamped by Polish immigration officials. There was simply no evidence on the record as to what the practice was in this respect.
DISPOSITION
[30] For all of these reasons, this judicial review application is allowed. The tribunal's decision is set aside and the applicant's refugee claim is to be redetermined by a differently constituted tribunal. No certified question was proposed.
"J. Francois Lemieux"
JUDGE
OTTAWA, ONTARIO
August 23, 2001
Date: 20010823
Docket: IMM-3161-00
OTTAWA, ONTARIO, THIS 23RD DAY OF AUGUST, 2001
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
PAWEL SZOSTAK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
This judicial review application is allowed. The tribunal's decision is set aside and the applicant's refugee claim is to be redetermined by a differently constituted tribunal. No certified question was proposed.
"J. Francois Lemieux"
JUDGE
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