Date: 19990913
Docket: IMM-5988-98
BETWEEN:
JOSEF MITAC, JOZEF MITAC, MARTA MITACOVA,
MAREK MITAC, JULIA KINOVA and MICHAELA KINOVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicants are citizens of the Czech Republic who claimed refugee status on the grounds of their race and membership in a particular social group, namely the Roma minority. The applicants are members of the same family.
[2] At the outset of the hearing, the tribunal determined that the sole issue was whether the applicants were members of the Romani ethnic group. The tribunal relied on three findings to support its conclusion that the applicants were not Roma: (a) the family did not have the usual ethnic or racial traits of European Roma but resembled persons from Pakistan or Turkey; (b) the family could not prove that they spoke the Romani language and were not well-versed in the Romani culture; and (c) the parents could not identify the sub-group of Roma with which they were affiliated.
[3] The tribunal also commented on the demeanour of the applicants during the hearing. It found that the applicants, other than Marta Mitacova, expressed "a cynical, sarcastic and disrespectful comportment that was inconsistent with persons seeking refugee status for legitimate reasons".
[4] On the issue of the applicants" Romani identity, the tribunal stated:
| The claimant said he would be identified as a Roma by others as a result of his dark skin. The claimant is dark-skinned, and his children are also dark-haired and dark-skinned individuals. The panel remarked to the principal claimant that his physical features suggest he may perhaps be someone of Pakistani or Turkish ethnicity, because he, and especially his sons, do not appear to the panel as bearing the features one might customarily attribute to persons claiming to be Roma. The claimants" physical appearance is more Near Eastern or Asian than the usual traits normally observed by this and other panels of European Romas from the Czech Republic. [Emphasis added.] |
[5] Reliance on a tribunal member"s observations concerning an applicant"s "physical features" is, in the absence of expert evidence, "inherently dangerous" as noted by Justice Evans in Pluhar v. Canada (Minister of Citizenship and Immigration):1
| 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. |
| 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. |
[6] When asked how he could be identified as a person of Romani descent, Mr. Mitac responded: "It is very easy: colour of my skin; the way I speak; traditions - the way we live, culture." Even if the applicant himself referred to the colour of his skin to establish his Romani ethnicity, there is no evidentiary basis for the tribunal"s conclusion that his appearance is "more Near Eastern or Asian". This finding ignores information in a paper prepared by the Research Directorate of the Immigration and Refugee Board in November 1997 that some Roma originate from India. The reference to usual traits normally observed by "other panels" further confirms that this decision was made without regard for the material before the tribunal. This constitutes a reviewable error.
[7] The applicants testified in the Czech language. Mr. Mitac noted that the Roma speak Czech with a different accent. He stated that his family speaks the Romani language at home. He also testified concerning certain Romani traditions, including those with respect to the Romani marriage ceremony. In response to persistent questioning concerning the Roma sub-clan to which the family might belong, Mr. Mitac consistently stated that his family were "regular Roma", with no affiliation with any sub-group of which he was aware. The tribunal does not state in clear and unmistakable terms its reasons for not accepting Mr. Mitac"s evidence.
[8] The tribunal also indicated that it was not satisfied with the applicants" ability to speak the Romani language. It explained its concern in these terms:
| [Mr. Mitac] offered a word which allegedly meant "thank you", but there was no way to verify the meaning since neither the interpreter nor the panel speaks the Roma language . Further, the claimants" counsel did not pursue this line of questioning, perhaps because she did not feel this would be helpful , yet the panel finds that the claimant did not establish satisfactorily that he or his family speak the Roma language. [Emphasis added.] |
[9] Counsel for the respondent properly points out that the applicants had the burden to establish their Romani ethnicity. He acknowledged that to establish one"s ethnicity is different than proving one"s citizenship, which may be as straightforward as showing the authenticity of national identity documentation. Mr. Mitac provided a limited example of his ability in that language in response to a question asked of his counsel. He also testified, as I noted earlier, that his family spoke the Romani language at home. The tribunal did not test further the applicants" Romani language skills. In my opinion, the tribunal"s finding that the applicants did not speak their ethnic language was without regard to the evidence.
[10] In this case, it was wrong for the tribunal to speculate that counsel may not have pursued the questioning of the applicants in the Romani language, "because she did not feel this would be helpful". The only apparent reason for not further testing the applicants" language skills was the absence of a Romani interpreter. Further comments concerning counsel"s motives are pure speculation. A review of the hearing transcript, covering both the evidence and the oral submissions, discloses no concern expressed by the tribunal with respect to the applicant"s ability to speak the Romani language.
[11] Where the identity issue is related to one"s ethnicity, as opposed to one"s citizenship, in some cases language may be particularly relevant. If the tribunal had doubts concerning the applicants" ability to speak their ethnic language, it would have been far preferable to so state on the record. The absence of a Romani interpreter at the hearing may have fettered further questioning concerning the applicants" language ability both by the tribunal and their counsel. If the counsel had known of the tribunal"s concern, a request for an adjournment to obtain the services of a Romani interpreter may have been appropriate.
[12] The reasons set out at some length the applicants" alleged comportment during the hearing. After noting that the eldest Mitac son was "smiling and laughing" during his testimony and referring to the "facial expressions" of the other young adult children, the tribunal concluded:
| The panel made an adverse finding on their credibility, and this behaviour, coupled with the lack of persuasive evidence to support their alleged Roma ethnicity, became determinative of their claim on his credibility. |
[13] The tribunal"s reasoning cannot stand the test of scrutiny. First, the tribunal erred when it noted in its reasons that its concern with respect to the applicants" comportment was mentioned several times on the record. There is only one reference in the transcript by either panel member in this regard.2 Second, it is wrong to have attributed to the applicants" counsel that "all three young adults made facial expressions". It was only with respect to the single occasion where a panel member noted the demeanour of only one of the applicants that counsel dealt with this issue. Third, and more significantly, there is no rational connection, in the circumstances of this case, between the applicants" demeanour during the hearing and the tribunal"s conclusion that they were not Roma but rather "Near Eastern or Asian".
[14] This application for judicial review will be granted and the matter referred for redetermination by a differently constituted panel. Neither party suggested the certification of a serious question.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
September 13, 1999
__________________1 (27 August 1999), IMM-5334-98 (F.C.T.D.), at paragraphs 10 and 11.