Date: 20020228
Docket: IMM-1373-01
Neutral citation: 2002 FCT 225
BETWEEN:
ZOLTAN TUBACOS
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
KELEN J.
[1] This is an application pursuant to section 18.1 of the Federal Court Act, RSC 1985, c. F-7, for judicial review of the decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated February 28, 2001, wherein the applicant was found not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act.
[2] Leave for this application for judicial review was granted by Associate Chief Justice Lutfy on December 3, 2001.
FACTS
[3] The applicant, born May 23, 1973, and is a citizen of Romania. He came to Canada on June 3, 1999 by way of Hungary where his brother lives. His Roma ethnicity is allegedly derived from his Roma father, whereas his mother is Hungarian.
[4] The applicant claims he has a well-founded fear of prosecution at the hands of the local police and security police in Romania because of his Roma ethnicity and involvement in the Roma Party, a political organization.
DEFINITION OF CONVENTION REFUGEE
[5] "Convention Refugee" is defined in section 2 of the Immigration Act as follows:
"Convention refugee"means any person who
(a) by reason of a well-founded fear of persecution for reason of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
STANDARD OF REVIEW
[6] The CRDD is a specialized tribunal and has complete jurisdiction to determine the credibility and plausibility of testimony. The standard of review for questions of fact and law is patently unreasonable, whereas for questions of pure law it is correctness.
[7] This Court will not intervene in the findings of credibility of the CRDD unless they are patently unreasonable. Mr. Justice Blanchard succinctly summarized the law in this regard in Horvath v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 901, 2001 FCT 583 (F.C.T.D.), at paragraph 9:
It is important to note at the outset that, generally, findings of credibility by the CRDD are given much deference. It is the CRDD who have the benefit of observing witnesses directly and are in the best position to determine credibility. As the Federal Court of Appeal states in Agubor v. Canada (M.C.I.):
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position that the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
This Court should not intervene in the findings of credibility of the CRDD unless they are patently unreasonable. [emphasis added]
[8] In Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.), Pelletier J. stated at paragraph 5:
The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193.
[9] In the present case, the issues raised by the applicant are related to fact and credibility. Therefore, the standard of review to be applied is that of patent unreasonableness.
DECISION OF THE IMMIGRATION AND REFUGEE BOARD
[10] The CRDD decision is based on its finding that the applicant is not of Roma ethnicity, which was the basis of his claim as a Convention refugee. The CRDD held that he was not of Roma ethnicity because he did not conform with the stereotypical profile of a Roma. The CRDD general description of a Roma includes dark skin, large families, no education, unemployed, and marrying young. Since the applicant was not "dark skinned", was not from a "large family", did not marry young, was not uneducated, and was not unemployed, the CRDD found that he was not Roma. The Tribunal held at page 1 in its decision:
The panel determined the claimant is not a Convention refugee. His evidence regarding his Roma ethnicity was not credible, and as his ethnicity formed the basis of his claim, there was insufficient credible trustworthy evidence before the panel on which it could rely to find him to be a Convention refugee.
and at page 2 of its decision:
The documentary evidence notes that Roma are generally dark skinned, with dark eyes; the claimant, while having dark hair, is fair and, according to the POE forms, is green eyed. Many Roma marry young, have large families, have difficulty accessing higher education and securing employment. The claimant has only one brother, and both of them have university educations. The claimant, at age 29 is unmarried, and was able to find a job as an engineer within a month of graduating. He was able to return to that job after completing his military service and, on losing his job in 1998, was able to find another one within a month. His parents were both employed and he testified they were not poor and could afford education for their sons. This pattern of education and employment is inconsistent with that described in the documentary evidence.
and at page 3 of its decision:
On a balance of probabilities, the panel finds the claimant is not of Roma ethnicity, nor would he be identified as such, given his appearance, half-Hungarian heritage and educational and employment profile.
ISSUE
[11] Is the CRDD's finding that the applicant is not Roma patently unreasonable based on the evidence?
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 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.
(underlining added)
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.
CONCLUSION
[18] In view of the standard of review, I find that the CRDD finding that the applicant was not Roma to be patently unreasonable. Accordingly, this application for judicial review is allowed, and this case is referred to a different panel of the CRDD for redetermination. The parties indicated that they do not request that any question be certified for appeal.
"Michael A. Kelen"
JUDGE
Calgary, Alberta
February 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020228
Docket: IMM-1373-01
BETWEEN:
ZOLTAN TUBACOS
Applicant,
- and -
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1373-01
STYLE OF CAUSE: ZOLTAN TUBACOS v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: February 27, 2002
REASONS FOR ORDER : KELEN, J.
DATED: February 28, 2002
APPEARANCES:
Ms. D. Jean Munn FOR APPLICANT
Ms. Tracy J. King FOR RESPONDENT
SOLICITORS OF RECORD:
Caron & Partners
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT