Date: 20010911
Neutral citation: 2001 FCT 1011
BETWEEN:
IOAN TOFAN
MONICA LILIANA TOFAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants to seek to set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated May 19, 2000, pursuant to which their claims to refugee status in Canada were denied.
[2] The applicants, gypsies and citizens of Romania, claim a well-founded fear of persecution by reason of their ethnicity.
[3] The applicants left Romania on July 9, 1998, for Hungary, where they arrived on the following day. On July 19, they departed by plane for London and, on the following day, they left for Mexico, where they arrived on July 20. That day, they left, again by plane, for Costa Rica, where they stayed until July 25. On that day, they flew to the United States and then to Calgary, Alberta, where they arrived on July 25. They made their claims for refugee status on July 27, 1998.
[4] The Board, in denying both applicants refugee status, concluded that they were not credible. The applicants challenge the Board's decision on 8 grounds, namely:
1. Did the tribunal fail to give appropriate weight to the presumption of truthfulness, and thereby commit an error going to its jurisdiction?
2. Did the tribunal, in deciding that the claimants would not risk persecution because of gypsy ethnicity in Romania, arrive at a conclusion that was patently unreasonable and thereby commit a reviewable error?
3. Did the tribunal fail to observe principles of natural justice or procedural fairness and fail to consider relevant evidence when it held that Ioan Tofan's medical certificate had "no probative value" to the claimant's allegations of persecution?
4. Did the tribunal fail to observe principles of natural justice or procedural fairness, fail to consider relevant evidence and commit an error on the face of the record when it dismissed Exhibit P-18 - a police summons - for not being mentioned in Ioan Tofan's PIF, even though both claimants' written testimony filed at the hearing did contain mention of the incident, and the claimants were never confronted with the alleged omission at the hearing?
5. Did the tribunal fail to observe principles of natural justice or procedural fairness and fail to consider relevant evidence when, in making its decision concerning the claims to refugee status of both Ioan and Monica Tofan, it made a negative finding of credibility in relation to Monica Tofan's testimony (and therefore her claim) solely on the basis that it did not believe Ioan Tofan?
6. Did the tribunal commit an error of law when it applied the test from the Castillejos and Huerta decisions to the facts of the present case to find evidence that the Tofans did not have a reasonable fear of persecution?
7. Did the tribunal members, in conducting the hearing, take such an active role in questioning the claimants that their appearance of impartiality was lost so as to raise a reasonable apprehension of bias and commit a breach of the principles of natural justice?
8. Did the tribunal misdirect itself when it embarked upon an investigation of whether Ioan Tofan was a deserter and also of his religious beliefs, - even though the Applicants themselves were advancing their claim on the basis of ethnicity?
[5] I begin my analysis with ground 7: Did the tribunal members, in conducting the hearing, take such an active role in questioning the claimants that their appearance of impartiality was lost so as to raise a reasonable apprehension of bias and commit a breach of the principles of natural justice?
[6] I have read the transcript of the applicants' viva voce evidence given in Saskatoon on January 20, 2000, on at least three occasions. There is no doubt in my mind that the answer to this question is no. Nothing that was asked by the Board members, nor the manner in which the questions were posed, can give rise, in my view, to a reasonable apprehension of bias. In his memorandum, at paragraph 75, counsel for the applicants submits that the Board members' questioning "was so aggressive and extensive as to give rise to a reasonable apprehension of bias. It was also of such a nature as to tend to cause confusion in the mind of the claimants." Firstly, the fact that the questioning was extensive can certainly not be used to buttress an argument that the questioning gives rise to a reasonable apprehension of bias. Secondly, if confusion resulted from the questions posed by the Board members, that confusion, in my opinion, resulted from the fact that the applicants' story itself was confusing. One need only examine the answers given by the male applicant with respect to his status as a deserter and his conversion from the Orthodox Church to the Adventist Church to realize the confusion caused by his testimony. On the basis of the answers given by the male applicant to the questions posed by the Board on these issues, it would be very difficult to find the male applicant credible. In my view, the applicants' submissions on this point are wholly without merit.
[7] I now turn to ground 6: Did the tribunal commit an error of law when it applied the test from the Castillejos and Huerta decisions to the facts of the present case to find evidence that the Tofans did not have a reasonable fear of persecution?
[8] At page 8 of its Reasons, the Board states the following:
Lastly, before arriving in Canada, the claimants went through several countries which are signatories of the Geneva Convention without claiming refugee status. The claimant explained that they were not aware of such a possibility and that their intention was to come to Canada. The tribunal does not find this explanation satisfactory and considers that the fact that they did not claim at the first opportunity shows a lack of subjective fear.
[9] At paragraph 72 of his memorandum, counsel for the applicants submits that the Board:
[...] overstated the significance of the delay in claiming refugee status and ignored the Tofans' reasonable explanation for that delay. It then applied the Castillejos and Huerta decisions to find that that delay was conclusive on the issue of subjective fear of persecution, instead of one factor to be considered.
[10] It certainly cannot be argued, in my view, that the Board was not entitled to consider, as a relevant factor, the applicants' failure to claim refugee status either in Costa Rica or the United States. The applicants' explanation for their failure to claim was that they were not aware that they could claim refugee status elsewhere and that, in any event, their intention had always been to come to Canada.
[11] Whether that explanation was a reasonable one or not was for the Board to decide. I am satisfied that the Board did not make a reviewable error when it concluded that the applicants' failure to claim either in Costa Rica or in the United States was a relevant factor in the assessment of the applicants' subjective fear.
[12] I now turn to ground 8: Did the tribunal misdirect itself when it embarked upon an investigation of whether Ioan Tofan was a deserter and also of his religious beliefs, - even though the Applicants themselves were advancing their claim on the basis of ethnicity?
[13] Regarding this issue, the applicants submit that since the issues of the male applicant's desertion and conversion to the Adventist religion were not put forward by the applicants as primary grounds of their claim to refugee status, the Board erred in spending time questioning them on these issues. At paragraph 78 of his memorandum, counsel makes the following submission:
[...] It is a reviewable error for the tribunal to decide that a claimant who wishes to bring a claim forward on the basis of ethnicity must also prove the issue of religion. The Tofan's [sic] claim to refugee status was based upon their gypsy ethnicity coupled with minimal political involvement in the Roma Party; it was not based upon persecution due to Seventh Day Adventist beliefs.
[14] In my view, counsel misses the point. At no time did the Board require the applicants to prove "the issue of religion". The issue arose during the course of the male applicant's testimony and the Board members questioned him in regard thereto. The Board members questioned the applicants, properly in my view, with regard to the reasons given in their Personal Information Forms (their "PIFs") as to why they had left their country and were seeking protection in Canada. In so doing, the Board members were not limited to the specific reasons given by applicants in their PIFs. In seeking to assess the validity of the applicants' refugee claim, the Board members were certainly entitled to question the applicants in a broad and general way, so as to determine whether the story put forward by them was credible. The fact that the male applicant was far from convincing, with regard to his desertion and his religious beliefs, was a factor which the Board was entitled to consider in determining whether or not the applicants had proved their claim. Consequently, the applicants fail on this issue.
[15] I now turn to ground 1: Did the tribunal fail to give appropriate weight to the presumption of truthfulness, and thereby commit an error going to its jurisdiction?
[16] The answer to this question is no. The Board concluded that the applicants' evidence was not credible and hence, rejected their refugee claims. The Board gave clear and cogent reasons as to why it did not believe the applicants and, as a result, did not fail to give appropriate weight to the presumption of truthfulness as required by the Court of Appeal's decision in Maldonado v. Canada (M.E.I.) (1980), 31 N.R. 34.
[17] Another ground put forward by the applicants for challenging the Board's decision is ground 2: Did the tribunal, in deciding that the claimants would not risk persecution because of gypsy ethnicity in Romania, arrive at a conclusion that was patently unreasonable and thereby commit a reviewable error?
[18] In my view, on the evidence before it, the Board did not arrive at a conclusion that could be qualified as being unreasonable. There was evidence supporting the Board's conclusion and thus, the applicants fail on this ground.
[19] I now turn to grounds 3 and 4: (3) Did the tribunal fail to observe principles of natural justice or procedural fairness and fail to consider relevant evidence when it held that Ioan Tofan's medical certificate had "no probative value" to the claimant's allegations of persecution?; (4) Did the tribunal fail to observe principles of natural justice or procedural fairness, fail to consider relevant evidence and commit an error on the face of the record when it dismissed Exhibit P-18 - a police summons - for not being mentioned in Ioan Tofan's PIF, even though both claimants' written testimony filed at the hearing did contain mention of the incident, and the claimants were never confronted with the alleged omission at the hearing?
[20] Again, the answer to these questions is no. Firstly, the Board explained why it could not give any weight to the male applicant's medical certificate and exhibit P-18, a police summons. Secondly, that conclusion is not surprising, considering that overall, the Board could not believe many aspects of the applicants' story. Since the Board could not accept the truthfulness of the facts underlying these documents, it comes as no surprise that the documents themselves were discounted by the Board.
[21] I now turn to ground 5: Did the tribunal fail to observe principles of natural justice or procedural fairness and fail to consider relevant evidence when, in making its decision concerning the claims to refugee status of both Ioan and Monica Tofan, it made a negative finding of credibility in relation to Monica Tofan's testimony (and therefore her claim) solely on the basis that it did not believe Ioan Tofan?
[22] The gist of the applicants' submission on this ground is found at paragraphs 67 and 68 of their memorandum:
67. In its decision, the tribunal extensively reviewed Ioan Tofan's evidence and almost entirely ignored Monica Tofan. In fact, on pages 6 and 7 of the decision, it analyzed her evidence in one paragraph, and then dismissed it in a single sentence:
"Since we do not believe that the claimant was sought by the police, we do not believe that the police came to look for him at his home and raped his wife on May5, 1998.
In short, the tribunal did not even pretend to consider her testimony and to make any independent evaluations of her credibility as a witness.
68. Monica Tofan was a principal claimant with an individual claim to refugee status that did not wholly rise or fall with her husband's claim. The case law clearly establishes that it is possible for one member of a couple to be found a refugee, while the other spouse is not.
[23] I will begin my analysis of this ground by referring to what the Board said in its decision concerning the female applicant. At pages 3 and 4 of its Reasons, the Board, in its summary of the facts, states:
The female claimant adds the following:
She finished elementary school in Gherla in 1982 and in 1987 high school in a different school. As a gypsy, she was despised by the teachers and other students and ill-treated. After her marriage, she had a job from 1989 till 1998 as a worker in a furniture company.
When her first daughter was born in 1988, the doctor, in a hurry, pulled the baby too hard. The baby suffered a collar-bone sprain and had to have her arm and shoulder tied in a sling. She was blamed for it. In the same year, the communists demolished their house, the only gypsy one in the area. They had to move in an apartment.
In 1990, she had to work in a very dangerous environment. A co-worker pushed a cart full of material towards her and she broke her arm trying to avoid being crushed. They laughed at her. She had to finish the working day to be able to see a doctor.
In 1994, two years after her second daughter was born, she had a miscarriage because of her heavy physical work. She was taken to hospital in Cluj for a blood transfusion, but the nurse gave her the wrong type of blood, either on purpose or because of lack of experience. The claimant had an itching reaction all over her body, but no nurse answered her call. Finally, a visitor brought a doctor who apologized. "This is what happens to gypsies, nobody cares or they cause us more harm".
In the summer of 1997, more precisely in August 1997, the serious problems started because her husband was a member of the "Roma party".
[24] Further, at pages 6 and 7 of its Reasons, the Board adds the following:
The female claimant alleges several incidents, including receiving the wrong blood transfusion. She stated: "This is what happens to us gypsies. Nobody cares or instead of helping us, they cause us more harm". However, she specified that it was in August 1997 that the "serious problems" started due to the fact that her husband was a member of the Roma party.
Since we do not believe that the claimant was sought by the police, we do not believe that the police came to look for him at his home and raped his wife on May 5, 1998.
[25] Unfortunately for the applicants, I must side with the respondent on this ground. I therefore disagree with the applicants' assertion that the Board "did not even pretend to consider their testimony and to make any independent evaluations of her credibility as a witness". To a considerable extent, the female applicant's story was dependent on that of her husband, which the Board found not credible. Their evidence, as counsel for the respondent argued, was intertwined and, as result, their claims were considered jointly.
[26] For these reasons, this application for judicial review shall be dismissed.
Marc Nadon
JUDGE
O T T A W A, Ontario
September 11, 2001