Toronto, Ontario, August 16, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated October 19, 2004, in which Johanna Nilda Gyorgyjakab (the applicant) was determined not to be a convention refugee nor a person in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicant is a citizen of both Romania and Hungary. She claims to have a well-founded fear of persecution and to be a person in need of protection by reason of her partial Roma ethnicity, her sexual orientation and because of domestic abuse towards her.
[3] The applicant was born in Romania, but moved to Hungary in 1993 at the age of 15, after having been beaten by the police upon discovering that she was a lesbian. In Hungary, she claims to have been ill-treated because of her Roma background. She claims to have also been raped by the son of her landlord (Steve), but that at the hospital, they accused her of making up the assault and rape because she was also seeing a psychiatrist during that period.
[4] The applicant further claims that Steve also tried to poison her and her mother (her father having divorced and left them years earlier). Although her mother was killed by the carbon monoxide, she escaped after being treated at a local hospital. The death was ruled accidental and no charges were ever laid.
[5] The applicant continued seeing a psychiatrist to help her "get straight" and to become attracted to men, but developed a relationship with another woman. At the same time, Steve continued pressuring her to win her over as his "trophy". In early 2000, the applicant's girlfriend left for Canada, and she went into a depression. She then learned that Steve was well connected with the local mafia and decided simply to give in to him, accepting to go on a honeymoon to Greece and Italy together.
[6] She continues her story by claiming that Steve got into financial troubles, and that he offered her to his creditors as a sexual toy. She claims to have been gang-raped in exchange for debt forgiveness. She went to the police to declare the rapes she had suffered, but they told her she had no evidence and that they would not investigate.
[7] In March 2002, the applicant was able to leave Hungary and come to Canada. She arrived on March 19, 2002 and claimed refugee protection on May 16, 2002.
ISSUES
[8] 1. Did the male Board member err in refusing to recuse himself in order for a female Board member to preside at the hearing?
2. Did the Board err in its finding that the applicant did not establish that she was indeed of Roma descent?
ANALYSIS
[9] The Board member raised numerous inconsistencies in the applicant's testimony and evidence. The applicant does not challenge the other negative credibility findings of the Board, but bases her application for judicial review on the two above mentioned issues.
1. Did the male Board member err in refusing to recuse himself in order for a female Board member to preside at the hearing?
[10] The applicant claims that the male Board member should have excused himself from the hearing, as required by the guidelines for women refugee claimants fearing gender-related persecution (the Guidelines). The relevant section of those Guidelines reads as follows:
D. SPECIAL PROBLEMS AT DETERMINATION HEARINGS
Women refugee claimants face special problems in demonstrating that their claims are credible and trustworthy. Some of the difficulties may arise because of cross-cultural misunderstandings. For example:
1. Women from societies where the preservation of one's virginity or marital dignity is the cultural norm may be reluctant to disclose their experiences of sexual violence in order to keep their "shame" to themselves and not dishonour their family or community. 28
2. Women from certain cultures where men do not share the details of their political, military or even social activities with their spouses, daughters or mothers may find themselves in a difficult situation when questioned about the experiences of their male relatives.29
3. Women refugee claimants who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome,30 and may require extremely sensitive handling. Similarly, women who have been subjected to domestic violence may exhibit a pattern of symptoms referred to as Battered Woman Syndrome and may also be reluctant to testify.31 In some cases it will be appropriate to consider whether claimants should be allowed to have the option of providing their testimony outside the hearing room by affidavit or by videotape, or in front of members and refugee claims officers specifically trained in dealing with violence against women. Members should be familiar with the UNHCR Executive Committee Guidelines on the Protection of Refugee Women.32
[11] Nowhere in the Guidelines is there mention of the fact that a male Board member should not preside the hearing, stating simply that some level of accommodation may be necessary. That being said, there is nothing in the decision of the Board which would indicate that this was not the case. On the contrary, the Board member specifically stated that:
At the outset of the hearing, counsel for the claimant expressed surprise that, given the nature of the case, the member hearing the claim was a male.
The panel does not find counsel's surprise to merit a change of panel. It is noted that counsel for the claimant is himself a male. Furthermore, the Refugee Protection Officer assisting the panel is a female. As well, there was no specific request made in advance of the hearing for a female panel member that the tribunal could have considered in scheduling the hearing. Lastly, all members of the tribunal are trained to be sensitive to gender issues and conduct themselves in accordance with the Chairperson's Gender Guidelines.
(...)
In reaching its conclusion, the panel considered the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. Even after making allowances for some deficiencies in her evidence, the panel concludes that the accretion of inconsistencies and questionable aspects of her evidence render her story unreliable and untrustworthy.
(Page 5 of the decision of the Board dated October 19, 2004)
[12] Upon a comparison of the reasons for decision and the transcript of the hearing, I find that the Board was sensitive to the applicant's situation, in that it never asked the applicant to enter into more detail concerning specifics of her alleged assaults, and that it rejected her claim on the many other glaring inconsistencies which the applicant was unable to clarify or explain; for example:
- That although sexual orientation and domestic violence were the basis of her claim, she omitted to mention these in her first narrative, claiming that she did not speak English and had stopped her story in 1996.
- That her tormentor was not merely the son of her landlord, but her future common-law spouse who was allegedly a criminal figure with connections to the underworld and to the police.
- That as a Roma, she was unable to attend school or work; even though the evidence showed she graduated from high school and was working as a secretary up until her departure from Hungary.
- That although she claims to fear persecution if she were to return to Romania, of her own volition, she visited that country several times between 1999 and 2002.
[13] Seeing as to how the Board found the applicant to be non-credible based on numerous inconsistencies, implausibilities and omissions in her statement, the existence of the Guidelines could not rehabilitate the applicant's credibility. As was stated in the similar case of Hernandez v. Canada(Minister of Citizenship and Immigration), 2001 FCT 643, [2001] F.C.J. No. 974 at paragraph 37:
The panel stated at page 2 of its decision that it considered the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and Update. The decision of the Board makes it clear that the Board did not believe the applicant's Maria Trinidad Cortes Hernandez's description of what happened to her in Mexico. As I have indicated earlier in this decision, the Board can make that type of credibility finding as long it does so in a clear and detailed manner. The only material that I have before me shows that the Board did consider the Guidelines. Therefore, no reviewable error was made here.
[14] For these reasons, I do not find that the Board made a reviewable error in continuing the hearing with a male member present, rather than having him recuse himself in place of a female member.
2. Did the Board err in its finding that the applicant did not establish that she was indeed of Roma descent?
[15] I agree with the applicant's submissions that it is inherently dangerous for Board members to base their findings on their observations concerning an applicant's physical features. (Mitac v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1385; Pluhar v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1318)
[16] However, this is not a case in which the Board members drew their conclusion that the applicant may not have been a Roma, simply on their observations of her during the hearing. Rather, the Board asked the applicant to describe how others would perceive her as being a Roma, and she herself stated it was her physique that could set her apart from non-Romas:
RPO: Well, you mentioned there were several fears. Istvan (ph) is one of your fears. Do you have any other fears?
(...)
CLAIMANT: I am a Gypsy and that's the second reason, and also (inaudible)
RPO: Can I get some information about your being a Gypsy? What do you mean by that? (...) How would you be perceived as a Roma? How would someone be able to know in Hungary?
CLAIMANT: My features, the way I talk, the way I dress sometimes, I guess.
RPO: Do you speak Romangural (ph)?)
CLAIMANT: Not really. (...) I know several words, what words may be, but I don't speak it.
(...)
RPO: You say the way you look. What is it about the way you look that would tell someone in Hungary that you are a Roma?
CLAIMANT: My skin colour (inaudible) have their eyebrows together and I have it not at the moment, but I do.
PRESIDING MEMBER: (...) There are no actual personal photographs of the claimant, the passport photograph being, at least the Hungarian one, black and white, and the Romanian is in colour, but the panel notes that the claimant has fair skin, the colouring of her eyebrows and hair appears to be brown, light brown. Just for the record, this is what the panel is observing, these features.
RPO: What is it you - - I'm looking at you and your eyes are what colour?
(...)
CLAIMANT: Brown, hazel.
RPO: They're quite light. They look like greenish. So, you would call that a hazel?
CLAIMANT: Hazel.
RPO: So with your hazel eyes, you have, like, a fair completion, and I'm just wondering what is it about your skin, as you mentioned, that would alert someone to the fact that you are Roma, if you are fair? Am I wrong about saying that you're fair?
(...)
CLAIMANT: I can't give you effective signs, but back home if somebody just looks at somebody, they automatically know who's a Gypsy and who's not just by looking at them.
(See transcript of the hearing dated September 1, 2004 at pages 14-18)
[17] It was therefore reasonable for the Board to have to question itself on the physical appearance of the applicant, seeing as to how she herself raised the way that she looked as being the main telling point of her Roma background. Nonetheless, the Board did not rely only on her physical appearance, but also added that:
- She did not speak the Roma language.
- She claimed that she was not accepted at school because of her Roma ancestry, however, the evidence showed that she had attended school from the moment she arrived in Hungary until her completion of high school.
- She also claimed that as a Roma, she was unable to find any work in Hungary. However, she worked as a secretary at two different places of employment right up until the moment when she left Hungary for Canada.
- There was no evidence that any of her relatives who share her ancestry and who resided in Romania had experienced any difficulties. Furthermore, the applicant, although she claimed to be persecuted as a Roma and therefore unable to travel to Romania, made several trips there during the three year period between 1999 and 2002.
[18] It was the culmination of all of these factors which lead the Board to conclude that the applicant had not established that she faced any persecution as a result of her alleged Roma ancestry. I find no error on behalf of the Board in coming to that conclusion.
[19] I am therefore of the opinion that the Board correctly applied the Guidelines in its evaluation of the applicant's claim, and that it did not err in determining that the applicant was not a person in need of protection, nor a convention refugee.
ORDER
THIS COURT ORDERS that
The application for judicial review be dismissed. No question for certification.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9302-04
STYLE OF CAUSE: JOHANNA NILDA GYORGYJAKAB
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 15, 2005
APPEARANCES:
George J. Kubes For the Applicant
SOLICITORS OF RECORD:
GEORGE J. KUBES For the Applicant
Toronto, Ontario
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada