Date: 19990827
Docket: IMM-5334-98
BETWEEN:
LUBOMIR PLUHAR
EVA PLUHAROVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.
[1] The applicants are a married couple from the Czech Republic. They claimed refugee status in Canada on account of Ms. Pluharova"s well-founded fear of persecution in the Czech Republic by virtue of her perceived Roma ethnicity. Mr. Pluhar, who is not Rom, fears persecution because of his marriage to a woman who is perceived to be a Roma.
[2] The applicants filed a joint Personal Information Form which is written in the voice of Ms. Pluharova. She stated that her father is Rom and his mother was a Roma: the applicant"s mother is not.
[3] She recounted in her written narrative several incidents in which she had been beaten, robbed or had sustained other misfortunes on account of her perceived ethnicity. The PIF also stated that Mr. Pluhar had been the victim of two attacks at which his wife was not present.
[4] The applicants believed that the perpetrators" motive in attacking them was Ms. Pluharova"s ethnicity. The police refused the applicants any assistance when they complained about these incidents.
[5] At the hearing of the applicants" claims the Refugee Division focussed on whether Ms. Pluharova would be perceived as Roma in the Czech Republic by would-be attackers and the police. The panel"s scepticism of Ms. Pluharova"s claim is apparent in the following extracts from its reasons:
| The panel observed the following aspects of the female claimant"s physical appearance: darkened skin, black hair and black eyeliner, heavy makeup and a fringed vest with large, gold, hooped earrings. The female claimant would appear to have been attempting to demonstrate physiological traits and clothing traditions which she believed the panel might associate with a female Roma person. |
| ... |
| The claimant came to the hearing with an obvious sun tan, indicating hours of exposure to the sun or perhaps time spent in a tanning bed. Her appearance was further altered by heavy makeup. Her skin tone was unnatural in the view of the panel. |
[6] The panel also examined photographs of the applicant and her son, and concluded that her skin tone was lighter than it appeared at the hearing.
[7] On the basis of its assessment of her appearance at the hearing and in the photograph, and in the absence of any other indicia by which Ms. Pluharova alleged that she would be perceived as a Roma, the panel concluded that, as a light skinned person, she would not be perceived as a Roma by the Czech public or authorities. Accordingly, it rejected the applicants" claim to be refugees.
[8] The panel was prepared to base its decision on Ms. Pluharova"s appearance, despite the following disclaimer in its reasons:
| The panel does not pretend to be expert in the physiological characteristics of Roma and it acknowledges that there may be variations in the physical traits of Roma, but the panel makes use of common sense in assessing the physical appearance of the female claimant. |
[9] Toward the ends of its reasons the panel states that its determination was based on all the evidence before it, including Ms. Pluharova"s testimony. However, it preferred the documentary evidence to the effect that Gypsies are usually identified in the Czech Republic by their dark skin and, having found that Ms. Pluharova"s skin was not dark, it rejected the claims. The panel did not subject to detailed examination the testimony of the applicants in which they described attacks that they alleged were motivated by Ms. Pluharova"s perceived ethnicity.
[10] 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 as of particular ethnicity solely on the basis of the members" observation of the person concerned.
[11] There may, of course, be some situations in which it will be quite obvious from a person"s appearance that the person is not of a particular ethnicity. However, since Ms. Pluharova had black hair and a "sun tanned" appearance, the panel"s "common sense" was an insufficiently reliable basis for the panel"s assessment of such a sensitive matter. Skin tone cannot be categorized simply as either "light" or "dark": there is a broad spectrum between these polarities. Racists may be able to identify a person as a member of a minority group by physical characteristics that would not necessarily be apparent to people in other countries.
[12] Counsel for the Minister submitted that, by resting her claim primarily on her physical appearance, Ms. Pluharova forced the panel to make its determination on the basis of her skin tone. I do not altogether agree. The panel members could and should have paid much closer attention to the rest of the applicants" testimony than their reasons and the transcript indicate that they did.
[13] The Refugee Division made no attempt to determine the credibility of either claimant on the basis of their evidence about the attacks to which they claimed to have been subject by virtue of Ms. Pluharova"s perceived ethnicity. The panel treated their written narrative as if it had been given orally under oath. Mr. Pluhar hardly testified at all.
[14] The fact that the applicants had the burden of establishing their claims did not exempt the Board from its duty to base its decision on a careful consideration of the evidence as a whole, which in my view it failed to do.
[15] For these reasons the application for judicial review is granted.
"John M. Evans"
Judge
Toronto, Ontario
August 27, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-5334-98 |
| STYLE OF CAUSE: LUBOMIR PLUHAR |
| EVA PLUHAROVA |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, AUGUST 24, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: EVANS J. |
DATED: FRIDAY, AUGUST 27, 1999
| APPEARANCES: Mr. Michael Crane |
For the Applicants
Ms. Ann-Margaret Oberst
For the Respondent
SOLICITORS OF RECORD: Michael Crane
| Barrister & Solicitor |
| 200-166 Pearl Street |
| Toronto, Ontario |
| M5H 1L3 |
| For the Applicants |
| Morris Rosenberg |
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990827
Docket: IMM-5334-98
Between:
| LUBOMIR PLUHAR |
| EVA PLUHAROVA |
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicants
| REASONS FOR ORDER |