TB6-02262

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 File No. / N° de dossier de la SAR : TB6-02262 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 13, 2017 Date de la décision Panel Pasquale Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mary E Boyce Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX, a citizen of Bulgaria, appeals a decision of the Refugee Protection Division (RPD) dated January 22, 2016, rejecting her claim for refugee protection. The Appellant is not requesting a new hearing and is not submitting new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that the Appellant is either Convention refugee or a person in need of protection, or that the RAD refer the matter back to the RPD for reconsideration. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant, a member of the Roma community, fears a gang of Skin Heads in her native country. ROLE OF THE RAD [4] For questions of fact, mixed fact and law, and law, the RAD has applied the standard of correctness as per Huruglica.1 In assessing issues involving credibility of oral testimony, the RAD may apply the RAD's modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage in making credibility findings as per the decision in X (Re).2 [5] Accordingly, the RAD will conduct its own analysis of the Record to determine if the RPD erred. ANALYSIS ON THE MERITS OF THE APPEAL [6] The RPD concluded that the Appellant had not established her identity as a member of the Roma community, and that she had a viable IFA to the city of Varna. The Appellant submits that the RPD erred in its identity analysis, and in its IFA conclusion. BACKGROUND OF APPEAL [7] The RPD hearing was held over two sittings: September 11, and December 3, 2015. The RPD rendered its decision on January 22, 2016. The Appellant appealed the RPD's decision to the RAD. By a decision dated August 3, 2016, the RAD confirmed the decision of the RPD. The Appellant filed an appeal with the Federal Court. An order signed by the Federal Court returned the matter to the RAD on consent. IDENTITY AS A MEMBER OF THE ROMA COMMUNITY [8] The Appellant stated that she is half Roma on her father side. She stated that she participated in Romani festivals, listened to Romani music, and was employed in Romani neighbourhoods where the majority of the individuals spoke Romani. She also provided documentary evidence to establish her alleged identity as a member of the Roma community. After analyzing the oral and documentary evidence, the RPD concluded that the Appellant is not a member of the Roma community. The RPD analyzed a number of factors in order to determine if the Appellant is a member of the Roma community. Appellant's Surname [9] The Appellant alleges that she is half Roma, on her father's side. The RPD asked if her surname is Roma and she stated that in the 1950's all of the Roma were forced to change their surnames to Bulgarian surnames. The RAD concludes, based on the oral testimony of the Appellant, that she would not be identified as a member of the Roma community based on her surname. Inability to Speak Romani [10] The RPD asked the Appellant if she could speak the Roma language and she provided two words for goose and lamb. The RPD asked the Appellant if she could say any conversational terms such as "hello" or "how you are doing" and she said that she could not. The Appellant submits that her evidence indicates that she could not speak Romani because she attended a non-Roma school, and that young people do not speak the Romani language.3 The RAD cannot accept this submission. [11] The RPD did not ask the Appellant to engage in a lengthy conversation using the Romani language. Rather, the RPD asked the Appellant if she could say simple colloquial terms such as "hello" and "how are you" but the Appellant could not do that. The Appellant stated that she was employed in Roma neighbourhoods where the majority of the clients spoke Romani fluently. It is reasonable to expect that the Appellant, given the particular location of her employment, would have become familiar with simple salutations such as "hello" and "how are you" in the Romani language. Her only knowledge of the Romani language was limited to "goose" and lamb". The RAD concludes that her extremely limited knowledge of Romani language does not assist the Appellant in establishing her identity as a Roma [12] The Appellant submitted a letter from Ms. XXXX XXXX, a Roma Settlement Worker with XXXX XXXX Services. Ms. XXXX writes in the letter that she confirms the identity of the Appellant as a member of the Roma community based on her cultural background and Romani language.4 The RPD asked the Appellant how the letter could state that she spoke Romani when in fact she did not. The RPD then communicated with Ms. XXXX and asked her to provide an explanation and she replied to the RPD that, in fact, it was her ancestors who spoke Romani.5 The RPD did not accept this explanation. [13] The Appellant submits that by RPD's rejection of the explanation provided by Ms. XXXX in the second letter is an abuse of process.6 The RAD cannot agree with this submission. The Appellant does not explain how or why the rejection by the RPD of the explanation by Ms. XXXX constitutes an abuse of process. The RPD reached its conclusion after analyzing the oral testimony of the Appellant, and the two letters from Ms. XXXX. There is no explanation in the second letter as to how Ms. XXXX made the mistake of stating in her first letter that the Appellant spoke Romani. She merely states that she made a mistake. This is a major contradiction by Ms. XXXX. It is reasonable to expect that she would have provided some form of explanation to justify her statement in the first letter stating that the Appellant spoke Romani. The RAD therefore gives Ms. XXXX letter no evidentiary weight in establishing the identity of the Appellant as a Roma. [14] The Appellant stated during her hearing, that she had attempted to obtain a letter from XXXX XXXX, a friend of her father and a member XXXX XXXX XXXX XXXX XXXX XXXX, to verify her identity. After the first sitting, the Appellant provided a hand written letter from a Mr. XXXX XXXX of the Roma community. The RPD gave the letter no evidentiary weight. The Appellant submits that the RPD erred when it concluded that the name of the author of the letter, XXXX XXXX, differed from that given in the oral testimony as XXXX XXXX. In fact, the Appellant submits, "XXXX" is translated in English as "Mr". [15] However, the RAD notes that the RPD also analyzed the contents of the letter. The RPD found that the letter was hand written and, more importantly, it did not contain any vital information, such as a letter head, which would indicate that it was written by a member of the XXXX XXXX XXXX XXXX. The Appellant does not challenge this particular finding of the RPD. It is reasonable to expect that a letter written by a member of the XXXX XXXX XXXX XXXX would include pertinent information indicating that, in fact, the author of the letter did belong to that particular organization. The RAD gives this letter no evidentiary weight in establishing the Appellant's identity as a Roma. [16] The Appellant also stated that she loved to listen to Romani music. The RPD asked her to name Roma bands or musicians that she listened to and she replied that she likes to listen to Azis, who is a Roma singer but the band that Azis is with is not a Roma band. Technically the band is not Roma music - it's a Roma singer with a Bulgarian band. The Appellant was also able to identify some Roma celebrations. However, the RAD gives this evidence little evidentiary weight in establishing her Roma identity as the information could easily be obtained through the public media. Personal Appearance [17] The Appellant submits that the RPD's conclusion that she would not be identified as a member of the Roma community based on her physical appearance is merely speculative.7 However, the RAD notes that the Appellant did not allege that she would be identified as a Roma based on her physical appearance but on the clothing that she wore. The RPD rejected this explanation. During the RPD hearing, the RPD observed how the Appellant dressed and also how she was dressed in the pictures which she submitted. Given these visual observations, the RPD concluded that the Appellant would not be identified as a Roma through the clothing that she wore. [18] The RAD, after reviewing the record and listening to the recording of the hearing, defers to the RPD in this particular assessment. The RPD had a meaningful advantage as it had the opportunity to observe the Appellant during the hearing, question the Appellant and choose the questions necessary to elicit responses concerning her appearance. The RAD finds that the RPD did not err in finding that the Appellant would not be identified as a member of the Roma community based on her physical appearance. CONCLUSION [19] Given all of the credibility issues outlined above, the RAD agrees with the RPD that the Appellant has failed to prove her identity as a member of the Roma community. [20] Given that the RAD has concluded that the Appellant is not a member of the Roma community, and that this is a determinative issue, the other arguments advanced by the appellant do not need to be addressed in this appeal. DECISION [21] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. [22] The Appeal is dismissed. (signed) "Pasquale Fiorino" Pasquale Fiorino September 13, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 X (Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit P-2, Appellant's Record, p. 25, para. 8. 4 Exhibit RPD-1, RPD's Record, exhibit 6. 5 Ibid., exhibit 7. 6 Exhibit P-2, Appellant's Record, p. 26, para. 12. 7 Exhibit P-2, Appellant's Record, p. 30, para. 22. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-02262