TC1-04635

RAD File / Dossier de la SAR : TC1-04635 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 12, 2021 Date de la décision Panel E. Bobkin Tribunal Counsel for the person who is the subject of the appeal Peter G. Ivanyi Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow the appeal of XXXX XXXX XXXX (Appellant), a citizen of Romania. I set aside the decision of the Refugee Protection Division (RPD) and substitute a decision that the Appellant is a Convention refugee based upon her Roma ethnicity. [2] The Appellant alleges that she is of Roma ethnicity and that she suffered discrimination and abuse in various facets of her life due to her ethnicity. She also alleges that her family suffered the same type of treatment. She came to Canada in XXXX 2018 and while she initially stated that she was entering as a visitor, when she learned her travel companion might not be able to enter Canada, she stated that she could not return to Romania and initiated a refugee claim. [3] The RPD rejected the Appellant's claim finding that she lacked credibility and that she had access to state protection. The RPD rejected the Appellant's post-hearing evidence. [4] The Appellant argues that the RPD erred in its assessment of credibility and that this flowed into the assessment of state protection. The Appellant submits that the RPD ought to have accepted her post-hearing evidence and submits it on appeal. [5] I agree with the Appellant. I find that the RPD's credibility assessment was microscopic and focused on peripheral issues as well as incorrect plausibility concerns. I also agree that this tainted the state protection assessment. I have conducted my own independent assessment, and I conclude that the Appellant meets the test for Convention refugee status. As my decision goes beyond the RPD's findings, I notified the Minister, pursuant to Alazar,1 but no response was forthcoming. DECISION [6] The appeal is allowed. I set aside the determination of the RPD and substitute my own decision that the Appellant is a Convention refugee. NEW EVIDENCE [7] The Appellant submits the package of post-hearing documents which were rejected by the RPD as new evidence on appeal. These documents are not new evidence, but they are accepted into the record, pursuant to rule 3(3)(d) which permits an appellant to rely on any documents the RPD refused to accept as evidence. I have therefore considered them on appeal. [8] As there is no new evidence, I cannot convene an oral hearing. ANALYSIS [9] My role is to look at all of the evidence and decide if the RPD made the correct decision.2 In this case, I find that the RPD's decision is not correct. The RPD's credibility analysis is incorrect and cannot be sustained [10] The RPD made several findings that led to the conclusion that the Appellant was not credible. The Appellant argues that these findings are microscopic, superficial, peripheral, and based upon improper plausibility conclusions. I agree. I will not discuss each finding, as I conclude that the analysis overall is incorrect and cannot be sustained. I conduct my own independent credibility assessment below. [11] The RPD made incorrect plausibility findings. For example, the RPD assessed the Appellant's allegation that she was mistreated in school but rejected this allegation because children could not execute the alleged threats.3 The RPD states: She also wrote that her Romanian classmates would spit on her, humiliate her, and threaten her with death if she would not leave Romania. Considering that the claimant started school at age 7, it seems fanciful to expect compliance with a demand to depart Romania which puts in doubt that it was made.4 [12] The Appellant argues that this is an improper plausibility finding, and I agree. I also find that it simply lacks common sense. A threat need not be something that the threatener expects the person to comply with. Just because children might not have expected the Appellant to leave Romania does not mean that it is implausible that they would say this. [13] The RPD made credibility findings on peripheral issues: The RPD made a number of findings which do not go to the core of the claim. For example: (a) The RPD concluded it was not credible that the person the Appellant traveled with was her common-law spouse because she could not accurately remember his birthdate or how long they were in a relationship for. I find this has no bearing on whether she is Roma and faces a risk based on her ethnicity. (b) The RPD concluded that the Appellant's allegation that she went to school in Italy for six months lacked credibility because she did not have corroborating documents and because there was some inconsistency in the dates when she allegedly was there. I find that this has little bearing on how the Appellant was treated in Romania. [14] The RPD made credibility findings on incorrect legal foundations. For example: (a) The RPD held that, because the Appellant is Romanian, she ought to have travelled to another European Union country, which she is entitled to do, and brought a claim there. This is akin to an external flight alternative and is not a valid basis to make a negative credibility finding. (b) The RPD held that the Appellant delayed claiming because she did not immediately claim protection upon arrival, even though the Appellant claimed upon arrival as soon as her ability to remain in Canada was called into doubt. This is an incorrect interpretation of the concept of delay in claiming. [15] These are just some of the examples of erroneous credibility findings made by the RPD. I find that the assessment cannot be sustained. I am therefore overturning the RPD's credibility assessment. The credibility assessment tainted the RPD's state protection assessment [16] The Appellant argues that the errors in the credibility assessment taint the RPD's state protection assessment. I agree. The RPD's state protection assessment is premised on not believing any of the Appellant's allegations, and therefore the state protection assessment is premised on things being "not as bad" as the Appellant makes them out to be. [17] For example, the RPD states: (a) "I find the conditions in Romania regarding discriminatory behaviour with respect to employment of Roma, while in need of more work, is not as grim as the claimant would have it."5 (b) "[these are] major steps in the right direction and should go some way to allaying the fears the claimant has expressed for not wanting to return to Romania."6 [18] Moreover, on an independent assessment of the record, I find legal errors in the state protection, including examples where the RPD relied on non-government organizations to provide state protection and based its conclusions on efforts being made, neither of which are correct. For example, the RPD held: "that is not to say that Romania and national and international organizations have not been unsuccessful in improving the situation for Roma and are not continuing to try to improve the condition of Roma."7 [19] For these reasons, I find that the state protection assessment is tainted by the negative credibility findings, and I find that it incorrectly applied the legal test. I therefore find that it cannot be sustained, and I am not relying on it. The Appellant meets the test for Convention refugee status [20] On an independent assessment, I find that the Appellant meets the test for Convention refugee status. The Appellant is credible, on a balance of probabilities [21] As described above, the RPD's credibility assessment is incorrect and unsustainable. Reviewing the record, I find that the Appellant is credible, on a balance of probabilities. [22] I note that there were some minor inconsistencies, particularly with regard to the port of entry (POE) notes and also with regard to the letter from the Appellant's father. However, in my view, these do not rebut the presumption of truth and are relatively minor. [23] Regarding the POE notes, the Appellant was clear from the outset that she was afraid of returning to Romania because she feared mistreatment due to her Roma ethnicity.8 While some details of the specific persecution were not consistent, I find that this is not determinative given the milieu of POE interviews and particularly given the Appellant's age and lack of sophistication. At the time of the interviews, the Appellant was approximately twenty, barely an adult, and she has only grade XXXX education. Moreover, the Appellant speaks Romani and Romanian, and I therefore accept, as the Appellant argues, that there could be some interpretation issues. As noted by the Appellant's Basis of Claim form (BOC), she requested an interpreter in the Roma dialect of Romanian for her hearing, but at the POE interviews, a Romanian interpreter (not necessarily of this dialect) was provided. I do not find it unreasonable that interpretation issues could play a role in the minor inconsistencies at the POE. [24] Regarding the Appellant's father's letter, in my view, any inconsistencies are minor. The father's letter states that the Appellant was called by a priest to where her father was cleaning in order to help,9 and the father's letter states that she decided to help so he could finish faster.10 I agree that this is different, but the reason the Appellant went to church is not central; what is central is what occurred, and in this regard, the BOC and the letter are consistent: the priest asked the Appellant to clean and then tried to force her into a deserted office aggressively, and she escaped. Again, this central part of the evidence was consistent in the testimony. I find the reason that the Appellant went to the church is peripheral, and I find that the letter corroborates the account of the attempted attack from the priest and the remainder of the allegations, including mistreatment in school and the mistreatment the Appellant's father suffered. I therefore give this letter weight. [25] I similarly give weight to the letters of the Appellant's family members which corroborate instances of harassment that the Appellant and her family have suffered, including being refused service in stores, being spit at, being assaulted, and being mistreated in school.11 I also give weight to the positive decision of the Appellant's husband, which the RPD discounted because the Appellant did not know her husband in Romania. I do not find this relevant, as the Appellant's husband is similarly situated to the Appellant because he is also a Romanian Roma. [26] Additionally, I reviewed the Appellant's testimony and find it to be generally credible. The Appellant was able to explain her allegations credibly and consistently in terms of being mistreated in Romania. When I look at all of the evidence in its totality, I find that the Appellant has established her allegations, on a balance of probabilities. The Appellant faces a serious possibility of persecution in Romania [27] I accepted the Appellant's allegations, on a balance of probabilities. These include being mistreated in school, being threatened and abused, facing an attempted sexual assault, and being refused service in public places. In my view, attempted assault and repeated harassment constitute persecution. I do not find that I need to consider cumulative discrimination in this case. I find that, based on the Appellant's past experiences, she faces a serious possibility of persecution in Romania on a forward-facing basis. [28] I find this is supported by the Appellant's past experience and the country conditions documents. The most up-to-date National Documentation Package (NDP) notes that police abuse of Roma continues, that discrimination against Roma continues to be a problem, including denial of access to public places, poor access to government services, shortage of employment opportunities, high rates of school attrition and inadequate healthcare.12 [29] When I look at the Appellant's personal experience and the country conditions evidence, I find that the Appellant faces a serious possibility of persecution on the basis of her ethnicity which is a Convention ground. The Appellant does not have access to adequate state protection or a viable internal flight alternative (IFA) [30] For the following reasons, I find that the Appellant does not have access to adequate state protection or a viable IFA. [31] Regarding state protection, I have reviewed the evidence, and I find that, while there is some evidence of efforts to protect Roma, at this time, state protection is not adequate at the operational level. [32] Documentary evidence in the NDP shows that the police continue to be violent towards Roma.13 Where Roma are the victims of crime, they may end up charged with a crime.14 Government officials have made discriminatory statements against Roma and have been involved in attacks against Roma.15 There are laws prohibiting discrimination, but there is "scarce" information on the implementation of these laws regarding Roma people.16 [33] While some sources note that there has been an improvement of the relationship between police and the Roma community, Romani groups indicate that police harassment and abuse continues to be routine.17 There is also evidence that, in the wake of the COVID-19 pandemic, Romani people have been scapegoated by government officials, which has led to further targeting, including violent police attacks on Romani communities.18 Therefore, I find that the Appellant would not have adequate state protection in Romania. Similarly, the country conditions evidence shows that the situation for Roma is the same across Romania, and, therefore, there is no viable internal flight alternative for the Appellant. CONCLUSION [34] The appeal is allowed. I set aside the determination of the RPD and substitute my own decision that the Appellant is a Convention refugee. (signed) Erin Bobkin E. Bobkin October 12, 2021 Date 1 M.C.I. v. Alazar (F.C., no. IMM-1168-20), Norris, June 21, 2021, 2021 FC 637. 2 M.C.I. v. Huruglica (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 3 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at para. 14 4 Ibid., at para. 14. 5 Ibid., at para. 27. 6 Ibid., at para. 99. 7 Ibid., at para. 93 8 Exhibit RPD-1, RPD Record, at pp. 66-109. 9 Ibid., at p. 56. 10 Ibid., at p. 137. 11 Ibid., at pp. 137-153. 12 NDP for Romania (August 31, 2021), item 2.1, United States Department of State, "Romania: Country Reports on Human Rights Practices for 2020", March 30, 2021. 13 NDP for Romania (August 31, 2021), item 2.1 (ibid). 14 NDP for Romania (August 31, 2021), item 2.1 (ibid.), at p. 30. 15 NDP for Romania (August 31, 2021), item 13.12, European Roma Rights Centre, "Romania: Roma Rights in the Time of COVID", September 2020, at p. 35. 16 NDP for Romania (August 31, 2021), item 13.4, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) ROU200706.E, "Situation and treatment of Roma, including ability to access housing, employment, education, and healthcare; state protection; impact of COVID-19 ...", August 11, 2021, at p. 4. 17 NDP for Romania (August 31, 2021), item 13.4 (ibid.), at pp. 8-9. 18 NDP for Romania (August 31, 2021), item 2.1 (supra endnote 12), at p. 30; and item 13.4 (ibid.), at pp. 8-10; and item 13.12 (supra endnote 15), at pp. 35-37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC1-04635 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français