TC0-03362

RAD File / Dossier de la SAR : TC0-03362 TC0-03363 / TC0-03364 / TC0-03365 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 11, 2021 Date de la décision Panel James Sloan Tribunal Counsel for the persons who are the subject of the appeal Khesrau Ahmadi Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] This is an appeal of a January 14, 2020 decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (Board) denying the Appellants' claim for refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA). [2] XXXX XXXX XXXXthe male Appellant), his wife XXXX XXXX XXXX XXXX (the female Appellant), and their two minor children are Romanian nationals. They claim that they experienced discrimination or other mistreatment in Romania in education, healthcare, and in their treatment by police and the general public because of their Roma ethnicity. They fear that if they return to Romania, the mistreatment, which they argue amounted to persecution, will continue. [3] The Appellants also have connections to other European countries. The male Appellant sought refugee status in XXXX in 2000, along with his mother and siblings. He gave up on his claim, however, because his lawyer advised him that he would not be successful. He moved to XXXX in XXXX 2000. He did not pursue an asylum claim in XXXX because, he claims, he was advised he would not be successful. He returned to Romania in 2001. [4] In 2003 the male Appellant and the female Appellant attempted to move to XXXX. He was deported to Romania; however, the female Appellant made a refugee claim there-though she later abandoned it. [5] In 2008 and again in 2009, the adult Appellants visited XXXX, where the male Appellant's mother has lived since approximately 2004, in order that their two children could be born there. After each birth, they returned to Romania. They did not try to establish residency there. [6] On XXXX XXXX, 2017, the Appellants moved from Romania to XXXX. They lived there for some two years, until they left XXXX for Canada on XXXX XXXX, 2018. They claim that they faced persecution in XXXX by the XXXX XXXX XXXX due to their status as Roma from Romania. They claim that if they return to XXXX, the persecution will continue. [7] For the reasons that follow I deny this appeal. HEARING [8] The Appellants have "requested that a hearing be held...in the event that the panel has any concerns with regards to the credibility of his evidence that may be determinative of his appeal."1 [9] They have made no argumentation as to how their request complies with subsection 110(6) of the IRPA; nor have they sought the admission of new evidence under subsection 110(4), a sine qua non of the application of subsection 110(6). The request for a hearing is denied. DETERMINATIVE ISSUES [10] The determinative issues in this case are credibility and whether the discrimination they faced in Romania amounted to persecution. STANDARD OF REVIEW [11] In my review of the RPD's decision, I will apply a standard of correctness.2 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.3 ANALYSIS [12] The RPD's reasoning may be grouped into five categories: 1) credibility and/or subjective fear findings; 2) a finding regarding the availability of state protection in XXXX; 3) an analysis of whether the discrimination they experienced in Romania amounted to persecution; 4) an analysis of the treatment of the Roma people in Romania generally; and, 5) a finding of whether, having regard to 3) and 4), they face a serious possibility of persecution or a likelihood of harm under subsection 97(1) of the IRPA if they return to Romania. [13] The Appellants contest the RPD's findings 1) (partially), 3), 4), and 5). They do not contest its finding 2); however, for reasons that will become apparent, it is not relevant to this appeal. 1. Credibility and subjective fear [14] The RPD held that the Appellants' credibility and/or subjective fear was undermined because: a) They reavailed to Romania after their visits to XXXX. b) They did not attempt to establish residency in XXXX. It rejected their explanations that they did not do so because i) they were advised by relatives that they were unlikely to find steady work, and ii) they were unable to learn Italian. c) After moving to XXXX, they reavailed to Romania to renew passports (once in XXXX 2017 and once in XXXX 2018). d) They did not attempt to establish permanent residency in XXXX. It rejected as unreasonable their explanations that they did not seek residency status because i) they would have had to live and be employed there for four years, ii) they believed they would be unable to secure work, and iii) they could not afford to live in a neighbourhood where they would be safe from the XXXX XXXX. e) They lacked evidence which it found was reasonably available, including evidence to corroborate their claim they had been victimized by the XXXX XXXX, their travel history, their residences, the children's education, and the female Appellant's criminal activity in XXXX (she was charged with XXXX in 2017 and with attempted XXXX in 2018). The RPD did not accept the female Appellant's explanation that she did not think it was necessary to bring evidence of her criminal charges to the hearing.4 [15] The Appellants argue that findings b), d), and e) were in error. Because the Appellants did not contest the RPD's findings that their revailaments to Romania from XXXX and XXXX undermined their credibility (findings a) and c) above), I need not provide an analysis of those findings. I note, however, that I agree with finding c)-that is to say that I too draw a negative conclusion from their reavailments to Romania from XXXX. However, given my finding (discussed below) that they believed that they did not have a right to live in XXXX, I disagree with finding a). I will not have regard to that finding in my overall credibility assessment below. Failure to take up residency in XXXX or XXXX (findings b) and d) above) [16] The Appellants note that "the RPD concludes that the Appellants had opportunities to obtain legal status in XXXX or XXXX but did not do so."5 They argue that this conclusion was in error because it was based on the false premise that Romanian nationals were entitled to reside in XXXX or XXXX. [17] The RPD did not, as the Appellants claim, find that they had the ability to obtain legal status in either XXXX or XXXX. Its point was a different one: that their failure to try to obtain residence status in either country undermined their claimed fear of returning to Romania. I agree. However, in both cases, they provided explanations, discussed above, as to why they did not try to obtain residency status. When I consider their explanations alongside the country condition evidence cited by the Appellants, I find them to be reasonable. Consequently, I find that the RPD's findings b) and d) were in error. Lack of supporting evidence (finding e) above) [18] The Appellants argue that the RPD erred by finding that the lack of corroborating evidence undermined their credibility. They argue that, given that they are entitled to the Maldonado6 presumption of truthfulness, their testimony should have been accepted as fact and no corroborative evidence should have been required. [19] I disagree. While the Maldonado presumption that a refugee claimant's sworn evidence is assumed to be truthful absent reason to doubt its veracity, Rule 11 of the RPD Rules provides a claimant must provide evidence establishing the elements of their claim or explain why they did not and what steps they took to obtain such evidence.7 In the recent case of Pazmandi, Mr. Justice McHaffie relied on Madam Justice Strickland's "thoughtful[] consider[ation] [of] the interplay between the Maldonado principle and Rule 11..."8 in the Ismaili case9 and her further consideration of the issue in the Luo decision.10 Justice McHaffie found that Justice Strickland had distilled the following principles from the jurisprudence, which he endorsed: * a refugee claimant's sworn evidence is presumed to be true unless there are reasons to doubt its truthfulness; * it is an error to make an adverse credibility finding solely on the basis of the absence of corroborative evidence; * however, where there is a valid reason to doubt the claimant's credibility, the lack of corroborative evidence without reasonable explanation can be a valid consideration in assessing credibility; and * despite the principle of truthfulness, an adverse credibility inference may be drawn if a claimant fails to produce evidence that the decision-maker reasonably expects should be available in the claimant's circumstances, and no reasonable explanation for failing to provide it is given. Justice Strickland summarized the latter two points above in the following terms: "a failure to provide corroborating documentation is only a proper consideration for the decision maker [...] [1] where there are valid reasons to doubt a claimant's credibility, or, [2] where the decision-maker does not accept the claimant's explanation for failing to produce documentary evidence when it would be reasonably expected to be available" [my added numbering]: Luo at para 21. I note that for the second of these situations to apply, two conditions must be met: first, the decision-maker must reasonably conclude that they would expect the documentary evidence to be available; and second, the decision-maker must reasonably reject the claimant's explanation for why they failed to provide the documents. These limitations prevent the exception from unduly undermining the general rule that it is an error to make an adverse credibility finding solely on the basis of the absence of corroborative evidence.11 [20] In the instant case, the adverse inferences drawn by the RPD were not based solely on the absence of adequate corroborative evidence. They were also based on its other, uncontested credibility findings, some of which I have agreed with. Consequently, this is not a case where the Maldonado presumption must be weighed against the requirements of RPD Rule 11. [21] In the alternative, if I am incorrect in finding that that credibility of the Appellants is at issue by virtue of the credibility findings I have agreed with, I must turn to the question of whether the RPD was correct to consider the failure to provide corroborating documentation on the basis that it did "not accept the claimant's explanation for failing to produce documentary evidence when it would be reasonably expected to be available." Here too, I find that the RPD acted correctly for the most part. [22] Having regard to Justice McHaffie's first condition, I find that it was reasonable for the RPD to have expected the documentation identified by it given its basic nature-e.g., information that would that would support their claims that they had been abused by the XXXX XXXX, that they had travelled as they claimed, that they had lived in XXXX, and regarding the children's educations. After all, they were represented by experienced counsel and had provided numerous other documents that they had been able to obtain, despite having moved to Canada (see below). The sole exception to this is the evidence regarding the female Appellant's criminal conduct. In my view, it was not reasonable of the RPD to have expected that she would provide this information, given that it is not material to her refugee claim. As to Judge McHaffie's second condition, it is clear from the transcript of the hearing that the Appellants provided no reasonable explanation for the lack of the supporting evidence described by the RPD, despite the issue having been raised by it. Supporting documentation provided [23] Before making an overall finding regarding the credibility of the Appellants, I will consider the supporting documentation that they did provide. In addition to identity documents, the Appellants provided: i. a doctor's letter regarding the male Appellant's XXXX condition; ii. evidence of school enrolment in Ontario of one of the minor Appellants; iii. a XXXX XXXX, 2019 letter from a friend, XXXX XXXX, stating that the Appellants "have nothing to lose after what happened and continues to happen here";12 iv. a XXXX XXXX, 2019 letter from a neighbour, XXXX XXXX, stating that the Appellants "have been through a lot of trouble" in Romania, that the two children were treated differently in Romania, and that the male Appellant had to "beg for insulin because he is a gypsy";13 v. a XXXX XXXX, 2019 letter from XXXX XXXX hoping that the Appellants' problems are over; vi. an undated letter from a friend, XXXX XXXX XXXX XXXX, noting that he is glad that, in Canada, the minor Appellants can go to a multiethnic school, that the adult Appellants need not look for school principals willing to accept the children, and that the Appellants are not considered strangers;14 vii. a XXXX XXXX, 2019 letter from a friend of the male Appellant's mother, XXXX XXXX XXXX XXXX XXXX XXXX, noting that the Appellants' decision-presumably to move to Canada-was "quite difficult but you had no choice. Living in a country where racism is [in existence] at all levels is very difficult."15 viii. documents indicating that the Appellants unsuccessfully attempted to obtain documents from XXXX to show their status there. [24] The document are of little value in relation to a credibility assessment. Many provide support for matters that are not contested-e.g. that they are Roma, that the male Appellant has an XXXX XXXX, or that the minor Appellant attends school in Ontario. As to the five support letters, these are of very limited probative value because of the vague way in which they attempt to support the Appellants' claims of discrimination-e.g., that they had been through a lot of trouble, that they had had problems, or that matters were quite difficult in Romania. [25] In addition, even where specific reference is made to particular instances of discrimination-regarding difficulties placing the children in education or the male Appellant's need to beg for insulin-it is unclear on what basis the letters' authors have knowledge of the discrimination. In the absence of any evidence that the letters' authors came to know of the mistreatment of the Appellants firsthand (e.g., by accompanying the male Appellant to the hospital), I conclude that they are simply repeating what they have been told by the Appellants. There is, of course, nothing wrong with this; however, repeating the evidence of the Appellants does not amount to evidence supporting the veracity of the Appellants' claims. Conclusion on credibility [26] When I weigh the RPD's credibility findings with which I have agreed, i.e. findings c) and e) above, against the supporting evidence that was provided, I find that the Appellants are overall lacking in credibility. Did they experience discrimination amounting to persecution in Romania? [27] Because of my finding that the Appellants lack overall credibility, I do not accept their evidence that they experienced the discrimination that they claim they did in Romania. However, in case I am mistaken in this conclusion, I will consider the RPD's analysis of their past mistreatment in the alterative. The RPD's findings [28] The RPD held as follows: * Housing. Based on their testimony, they had access to housing in Romania and there was no evidence to indicate that they had been unable to access housing due to their Roma ethnicities. There was no corroborating evidence that they had experienced discrimination in housing. It found that they would be able to obtain housing upon return. * Healthcare. Given their testimony and the absence of corroborative evidence, it held that it was unable to determine whether the Appellants were denied medical care. However-and apparently in the alternative-it held that while they "may have experienced discrimination in accessing treatment,"16 it did not amount to persecution. It held that they had access to medical care and would continue to have such access upon their return to Romania. * Employment. It noted that the adult Appellants were able to work and support themselves and their family in Romania over a significant period of time before leaving for XXXX in 2017. * General public. It held that four incidents (a XXXX 2004 incident where the male Appellant was XXXX and insulted by two non-Roma men when he was shopping; a XXXX 2011 restaurant incident where the adult Appellants were refused admittance to a restaurant and where, when the male Appellant protested, employees of the restaurant either pushed and slapped or merely embarrassed the adult Appellants;17 a XXXX 2013 incident where the adult Appellants were attacked by non-Roma Romanians while Christmas shopping; and a XXXX 2015 incident where the adult Appellants were sworn at and called names when they attempted to attend a concert) were discrimination or harassment. Moreover, it held that the Appellants had suffered discrimination by other Romanians, specifically when going to stores or restaurants. It held that the incidents did not rise to the level of persecution. * Education. It considered their testimony (in particular, it mentioned their testimony that the teachers failed to teach the minor Appellants, that the other children refused to play with them, and that a teacher said that one of the minor Appellants could not learn because he was a "gypsy"), noted the absence of evidence to corroborate their enrollment or any of the discrimination, and referred to an item in the country condition evidence which refers to efforts to combat early school leaving in Romanian schools.18 It then held that the minor Appellants "may have experienced some instances of discrimination at school, but that these do not rise to the level of persecution."19 In addition, it held that they had access to schooling and would be able to go to school upon return to Romania. [29] The RPD considered their evidence in light of the country condition evidence which indicates that Roma experience "systemic discrimination and exclusion in areas ranging from citizenship, education and employment to housing and access to justice" and healthcare; face higher poverty levels and more housing discrimination than non-Roma; are provided with educations that are significantly below average at all levels; generally "face inadequate health care" and have life expectancies that are eight years shorter than those of non-Roma; and face significant human rights issues (including police violence). Having done so, it stated: However, the documentary evidence also shows progress that is being made in Romania to combat the pervasive discrimination and harassment of Roma, in part because of Romania's membership in the European Union which engages EU oversight and recommendations concerning human rights issues, and formal reports by the Romanian government.20 [30] Based on the foregoing, the RPD accepted that the Appellants had suffered discrimination in education and by the general public (specifically in stores or restaurants), but found that the evidence failed to support a finding that "the discrimination cumulatively amounts to persecution, as the evidence does not indicate that [their] treatment amounted to sustained or systemic violation of their basic human rights."21 It continued: "More specifically, the panel finds that [they] have not provided persuasive evidence showing that they experienced serious, systemic and repetitive discrimination with respect to their basic human rights, notably education, housing and medical care."22 The arguments of the Appellants [31] The Appellants make the following arguments: 1) The reasoning of the RPD is circular because it agreed that there was serious discrimination, such as in employment and education, both fundamental rights, but found that their experiences did not amount to persecution.23 2) Its analysis of the country condition evidence was deficient because it noted that measures were being taken to combat early school leaving without having regard to whether or not the measures were effective. Moreover, it noted that it was wrong to rely on the measures, given that they were not directed specifically at Roma. 3) The RPD failed to identify why the discriminatory incidents did not amount to persecution; instead it merely stated the test, contrary to the finding in the Abdalqader case.24 4) It did not elaborate why the circumstances of the claim were different from those discussed in paragraph 54 of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the Refugee Convention,25 which provides: Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. 5) The RPD engaged in "flawed reasoning" because it broke down the mistreatment into different categories and decided if those categories amounted to persecution. 6) The RPD erred in its finding that the minor Appellants had the ability to return to school because this does not conform with the country condition evidence. 7) The RPD's expectation of supporting evidence in relation to discrimination in education was unreasonable, given that it had the Appellants' sworn evidence to rely on. 8) The RPD made an erroneous "plausibility finding" because it found that the incidents that the male Appellant testified about regarding denial of medical care did not amount to persecution without having regard to the country condition evidence. [32] I will consider the Appellants' arguments one-by-one: 1) First, the RPD did not find that the adult Appellants had been discriminated against in relation to employment as they claim it did. As to its finding that they had experienced discrimination, but not persecution, in relation to their treatment by the general public and in education, I find that there is nothing circular (or in any other way irregular) about this. The test for when discrimination rises to the level of persecution, discussed below, does not provide that discrimination, even in such a fundamental area as education, necessarily amounts to persecution. 2) I agree that the reasoning of the RPD was deficient in this regard. In paragraph 44 of its decision, it merely noted the existence of efforts, without having regard to their effectiveness in improving the lives of the Roma population.26 While not explicitly so stating, it appears that it relied on these efforts in arriving at its finding that the minor Appellants would be able to return to school upon return to Romania. Similarly, at paragraphs 54-57, it listed various problems of discrimination against Roma in Romania and then, at paragraph 58, simply noted improvements, which it apparently felt offsets those problems-without any supporting evidence or detailed reasoning. Its analysis does not support its conclusion. 3) The RPD made clear that it was engaging in an examination of whether the discrimination the Appellants claimed to have experienced amounted to persecution. It examined the past discrimination experienced by the Appellants and, having done so, concluded that the evidence did not show that the discrimination cumulatively amounted to persecution. It referred to the tests of "sustained or systemic violation of their basic human rights"27 and the Appellants' failure to show that they had "experienced serious, systemic and repetitive discrimination with respect to their basic human rights, notably education, housing and medical care."28 The tests come from the Supreme Court of Canada in Ward,29 and jurisprudence relying on it.30 While the Abdalqader case may stand for the proposition that it is an error for the RPD to merely state the test for when discrimination amounts to persecution, that is not what happened here. In the instant case, the RPD analyzed the claimed discrimination and made a reasoned finding regarding whether persecution had taken place in light of the tests. The RPD's analysis complies with the approach endorsed by the Court in Abdalqader: In this case the RPD engaged in a detailed assessment of the various forms of discrimination the applicants faced and identified the applicant's particular facts and circumstances....The conclusion that the cumulative effect of the discrimination did not rise to the level of persecution was not merely a statement but rather reflected the RPD's overall view based on its analysis.31 4) While the commentary in the UNHCR Handbook on when discrimination amounts to persecution is, of course, important and has been endorsed by the Courts,32 it exists alongside the jurisprudence on the issue. I can see no basis for an argument that the UNHCR Handbook must be considered in every case where the Board considers whether discrimination amounts to persecution. Moreover, it would be wrong to interpret paragraph 54 (quoted above) as standing for the principle that, where a claimant has experienced discrimination in relation to one of the basic rights mentioned as examples-"serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities"- discrimination necessarily amounts to persecution.33 While it is true that the RPD found that the minor Appellants may have experienced some instances of discrimination in education-and also true that "serious restrictions...on normally available educational facilities" is one of the examples given in paragraph 54-it found that they would be able to go to school upon return. Moreover, it specifically held that they had not shown "that they experienced serious, systemic and repetitive discrimination with respect to their basic human rights, notably education, housing and medical care."34 I can see no basis upon which the RPD may be said to have ignored paragraph 54 of the UNHCR Handbook. 5) The Appellants are correct that the RPD must consider the discrimination experienced by them cumulatively before deciding whether it amounted to persecution-and it did so at paragraph 60 of its decision. However, this does not mean that examining the various instances individually or grouping them under certain headings-education, healthcare, etc.-is in error. The Federal Court of Appeal has made clear that it must do both,35 unless, of course, it found that discrimination under any of the categories amounted to persecution, thereby obviating the need to consider to the cumulative impact of the discrimination experienced. As to discrimination in healthcare, the RPD's finding that it was not able to determine whether they had been denied medical care based on the evidence, is tantamount to a finding that they did not. Therefore, its finding that while they "may have experienced discrimination in accessing treatment"36 that did not amount to persecution, is an alternative finding. It is not clear that, in arriving at its conclusion that the Appellants did not suffer persecution based on their cumulative mistreatment, the RPD had regard to both its main finding (that they did not) and its alternative finding (that they did). As such, it is necessary for me to reconsider the RPD's finding. 6) I can see no error. The country condition evidence-neither that highlighted by the Appellants nor otherwise-does not show that the minor Appellants will, on a balance of probabilities, be prohibited from returning to school. Nor does it show that, generally speaking, Roma children are unable to attend school. Moreover, in this case, the Appellants have made clear that at least one of the minor Appellants had the opportunity to attend (a non-segregated) school when they lived in Romania. 7) I have discussed and rejected the Appellants' argument that the presumption of truthfulness ought to apply above, as part of my credibility analysis. I also note that, despite the absence of any supporting documentation relating to the children's educations undermining the Appellants' credibility, the RPD accepted that the minor Appellants had been discriminated against in education. Having said that, I find that the RPD erred in faulting the Appellants for not providing supporting evidence of discrimination in education, given that it gave no indication of what sort of documentation it envisioned might be available. I can think of none. It seems to me unlikely that there would be in existence a paper trail showing that a teacher or a pupil had bullied or otherwise mistreated the minor Appellants. 8) The RPD assessed the Appellants' past mistreatment according to their evidence and found that they had not experienced discrimination in accessing healthcare. It made this finding based on a lack of supporting evidence and not based on a finding of implausibility. Once again, however, I find that the RPD erred in faulting the Appellants for failing to provide supporting evidence for their claim of discrimination in healthcare: it gave no indication of what sort of documentation it envisioned and, once again, I do not believe that the alleged mistreatment would be likely to result in documentary support. [33] In view of the errors I have found to exist in my alternative analysis of the RPD's decision, I will reassess the Appellants' claim, in order to determine whether their past treatment in Romania amounted to persecution. Before doing so, I will briefly consider the how the concept of persecution has been defined in the jurisprudence and how the jurisprudence had addressed question of when discrimination or harassment may amount to persecution. Definitions [34] The Appellants, helpfully, referred to the following definition from the Federal Court of Appeal in Munderere,37 relying on the following passage from the Federal Court in Mete:38 [I]n Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129, the Federal Court of Appeal defined persecution in terms of: to harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently; to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship; a particular course or period of systematic infliction of punishment directed against those holding a particular belief; and persistent injury or annoyance from any source. [35] The Federal Court held as follows in the Hamdan case:39 [25] As indicated by the Supreme Court of Canada in Canada(Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 S.C.R. 689 at paragraph 63: "Persecution", for example, undefined in the Convention, has been ascribed the meaning of "sustained or systemic violation of basic human rights demonstrative of a failure of state protection"; see Hathaway, [James Hathaway, The Law of Refugee Status (1991)], 10 at pp. 104-105. So too Goodwin-Gill, [on Goodwin-Gill, Guy S. The Refugee in International Law. Oxford: Clarendon Press, 1983], at p. 38, observes that "comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights". This has recently been recognized by the Federal Court of Appeal in the Cheung case [Cheung v. Canada (Minister of Employment and Immigration), 1993 CanLII 2946 (FCA), [1993] 2 FC 314]. [26] The following definition of persecution, used by Justice Heald of the Federal Court of Appeal in Rajudeen v. Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 601 (F.C.A.) (QL), also continues to be applicable (see Canada (Minister of Citizenship and Immigration) v. Lin, [2001] F.C.J. No. 1574 (F.C.A.) (QL) at paragraph 18, Prato v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1345 (T.D.) (QL) at paragraph 7, Mete v. Canada (Minister of Citizenship and Immigration, 2005 FC 840 (CanLII), [2005] F.C.J. No. 1050 (T.D.) (QL) at paragraph 4): The first question to be answered is whether the applicant had a fear of persecution. The definition of Convention Refugee in the Immigration Act does not include a definition of "persecution". Accordingly, ordinary dictionary definitions may be considered. The Living Webster Encyclopedic Dictionary defines "persecute" as: "To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship." [36] In the Sagharichi case,40 the Federal Court of Appeal considered the question of when discrimination rises to persecution and found that the incidents of discrimination in that case were "not serious or systematic enough to be characterized as persecution."41 It held: [3] It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable. Of course, another valuable discussion about when discrimination or harassment might result in persecution comes from paragraph 54 of the UNHCR Handbook, discussed above. Reassessment of the Appellants' past treatment [37] I will reconsider the treatment faced by the Appellants in Romania and the issue of whether it was persecutory. * Housing. In their joint Basis of Claim (BOC), the male Appellant stated: "Due to my poor XXXX XXXX I have not been able to retain proper accommodations from the state or Romania due to my Roma ethnicity and I was refused such accommodation."42 The Appellants could only afford to live with the male Appellant's family in an impoverished area that consisted mainly of Roma. With the exception of a period during which the male Appellant was living in a camp in France, the Appellants were always able to find accommodation. While I find that they were discriminated against in housing, I see no basis for a finding that that discrimination was sufficiently serious and systemic to rise to the level of persecution. * Treatment by the police. In their joint BOC, the male Appellant claims that, in September 1989, when he was eight years old, the police searched his family home for over four hours without a warrant looking for a Roma person. He was pushed to the ground and his parents were beaten. He states that when non-Roma Romanians attacked Roma at a XXXX 2003 pro-Roma rally he attended, the police intervened before anyone was seriously injured. Finally, he claims that he reported attacks against him to the police in XXXX 1998 (after he was hit with a XXXX XXXX when trying to swim in a river) and XXXX 2004 (after he was XXXX in the XXXX while shopping). His evidence was that, after the 1998 attack, he did not hear back from the police and after the 2004 attack, he was told that when they caught the attackers, they would "see [him] again".43 He did not hear back from the police. He does not, however, indicate that he followed-up with them. The events of 1989 occurred over 30 years ago and do not appear to be part of a larger pattern. The protection that the Roma received from the police during the rally the male Appellant mentioned indicates that, in that instance at least, the police acted effectively to protect Roma. As to the failure of the police to follow up on the male Appellant's reports in 1998 and 2004, it is not clear from the Appellants' evidence that this was attributable to discrimination against the male Appellant based on his status as a Roma. I do not find that the Appellants have shown that they have been discriminated against by the police based on their Roma ethnicity. * Education. As a child, the male Appellant attempted to attend a school for children with disabilities due to his XXXX problem but was refused because the principal said that they did not have space. The minor Appellants suffered in school in Romania: they were bullied and mistreated by the students and teachers and their teachers refused to teach them. When the male Appellant confronted one of the teachers, she said of one of the minor Appellants, "because he is a gypsy he cannot learn." Unlike the school the male Appellant attended, the children's school was not segregated. While some progress may be said to have been made in that, unlike the male Appellant, the minor Appellants were not educated in Roma-only schools, I find that their mistreatment amounted to discrimination. I find that the discrimination against the minor Appellants in relation to education was not sufficiently serious to amount to persecution. As to the male Appellant's denial of admission into a school for children with disabilities, it is not clear that this was based on discrimination. In the absence of evidence to the contrary, I do not find that this was motivated by discrimination against Roma. * General public. The male Appellant testified that "Every time we were going out we had issues" because of their Roma background.44 The female Appellant testified: "Every time we went on the street, they called us names. They called us ugly gypsies."45 As to particular incidents, their evidence was that they were subject to the four attacks outlined above at paragraph 28; in addition, they claim that in XXXX 1998, the adult Appellants were told by non-Roma that they were not allowed to swim in a river and the male Appellant was hit with a broken bottle. I find that that the attacks were, generally speaking, serious and were motivated by discrimination. However, I note that, with two exceptions, they were not reported to the police, and, where reported, were not followed up on.46 Given this, and given that the attacks were unconnected and took place over a 15-year period, I do not find that they were sufficiently systemic or repetitive to rise to the level of persecution, as per the case law. * Employment. The female Appellant's evidence was that she worked as a XXXX. The male Appellant attributed his inability to find full time work to his XXXX XXXX47 and testified that he had occasional work XXXX XXXX. There is insufficient evidence to indicate that they suffered discrimination in relation to their employment. * Healthcare. After the male Appellant was allegedly hit with a XXXX in August 1998, he went to the hospital and was only treated after he paid the equivalent of $14.00. Also, the female Appellant testified that she did not have any health insurance and that when she took her children to the emergency room with a high fever, she was made to pay the equivalent of between $15.00 and $20.00. In addition, they felt that they needed to travel to XXXX for the birth of their children because they did not believe that they would be treated well at a Romanian hospital and would have to pay, despite medical treatment being free in Romania. I find that the adult Appellants' perception of the hospital system in Romania in relation to their ability have their children born there was speculative.48 I also find that they have not shown that payment for healthcare in Romania or a lack of health insurance was attributable to discrimination. * Social security: While the amount of social security the Appellants received on behalf of their children appears very low by Canadian standards-the equivalent of between $12.50 and $14.00 per month-the female Appellant testified that they did receive it. Absent any evidence that the amount they received was different than the amount non-Roma Romanians received, I do not find this to have been discriminatory. [38] Based on the evidence summarized above, I agree with the RPD that the Appellants faced discrimination in education and by the general public. When the various instances of discrimination are considered collectively, I find that they do not rise to the level of persecution, as defined in the case law. Future persecution [39] The Appellants argue that the RPD did not assess the forward-looking risk of persecution. They argue that it failed to have sufficient regard to the country condition evidence, which, they argue, shows that all Roma in Romania face discrimination amounting to persecution in the areas of education and healthcare. [40] I agree with the Appellants that the RPD did not adequately consider the possibility of discrimination on a forward-looking basis. As noted, it found that they would have access to housing, healthcare, and education upon their return and held that "progress is being made in Romania to combat the pervasive discrimination and harassment of Roma."49 However, it did not make a reasoned finding about the likelihood of their facing a serious possibility of persecution upon return. Instead, it held that they had not been persecuted in the past and then found "on a balance of probabilities, that if [they] return to Romania, [they] do not face a risk of discrimination that will cumulatively amount to persecution."50 [41] The Arocha case51 stands for the proposition that the Appellants need not show that they have been persecuted in the past in order for the claim to succeed; rather, the existence of a serious possibility of persecution may be established by examining the treatment of similarly situated people and/or the general documentary evidence. As the Federal Court held in that case, the past is but "one key indicator[;]it is not the sole barometer of future persecution."52 The question becomes whether, given the finding that they have not experienced persecution in the past, the country condition evidence or the evidence of similarly situated persons shows, on a balance of probabilities, that they would face a serious possibility of persecution upon return due to their status as Roma. [42] A summary of the country condition evidence shows that Roma do face discrimination in education and healthcare in Romania, along with discrimination in other areas: * Education. There are high rates of attrition for Roma; Roma children are systemically segregated, with some 26 percent of Roma encountering segregation in mainstream schools in 2014 and some 31 out of 100 educational establishments segregating Roma children; there were anecdotal reports of teachers ignoring Romani students and allowing bullying; more than half of Roma have not attained the minimum compulsory level of education; 22 percent of Romani children aged 7 to 15 are not in school as compared to 13 percent of non-Roma children; and 8.9 percent of Roma never enrolled in school due to a lack of resources (including clothing and shoes) or because they needed to work or care for their younger siblings.53 * Healthcare. Roma face inadequate health care and have a lower life expectancy than non-Roma; a March 2014 report indicates that in the previous year 11 percent of Roma reported that they needed health care but did not receive it, in comparison to 5 percent of the general population; four times more Romani children have not been vaccinated as compared to non-Roma children; Roma are more than three times more likely not to have health insurance as compared to non-Roma, and a 2011 study showed that only 75-85 percent of Roma had health insurance; and there is discrimination including outright denial of treatment, provision of substandard medical care, abusive treatment and segregation.54 [43] It is clear from the foregoing summary of the evidence relied upon by the Appellants-and, indeed, from the country condition evidence more broadly-that the treatment of Roma in Romania raises serious human rights concerns, which have the potential to rise to the level of persecution. However, it makes equally clear that discrimination does not take place in all instances and, a fortiori, that it does not rise the level of persecution in all cases. [44] The Federal Court held in the Csonka case, which involved Hungarian Roma, that the country condition evidence was not a sufficient basis for a finding that a serious possibility of persecution existed: Both subjective fear and objective fear are components in respect of a valid claim for refugee status. Objective fear should not be assessed in the abstract. In deciding if it exists, "objective evidence must be linked to the applicants' specific circumstances" [the Court relied on Sahiti v. Canada (Minister of Citizenship and Immigration), 2005 FC 364 (CanLII)]. Evidence of systemic or generalized human rights violations is insufficient to show "the specific and individualized fear of persecution of [a particular] applicant...."55 [45] Similarly, in the Jarada case, where the applicant was found to lack credibility, the Federal Court held that the "assessment of the applicant's potential risk of being persecuted if he were sent back to his country must be individualized. The fact that the documentary evidence shows that the human rights situation in a country is problematic does not necessarily mean there is risk to a given individual."56 [46] In the Gaspar case, the Federal Court considered a decision in which the RAD found that a claimant who lacked credibility had not "established the necessary link between the country conditions applicable to Roma people in Hungary and his particular circumstances."57 The Court accepted that personal targeting or past persecution was not required in order to establish a risk for the purpose of section 96 of the IRPA and that the risk could be established by examining the situation of similarly situated individuals.58 However, the Court, quoting from the Baloch case,59 held that the applicant must, nevertheless establish a link to the country condition evidence: Moreover, while the documentary evidence of general country conditions of Roma in Hungary raises human rights concerns, the mere fact of being of Roma ethnicity in Hungary is not, in and of itself, sufficient to establish that an applicant faces more than a mere possibility of persecution upon return (Csonka v Canada (Citizenship and Immigration), 2012 FC 1056, at paras 67-70 [Csonka]; Ahmad v Canada (Minister of Citizenship and Immigration), 2004 FC 808, at para 22 [Ahmad]. Both subjective fear and objective fear are components in respect of a valid claim for refugee status (Csonka, at para 3). The applicant has a burden of establishing a link between the general documentary evidence and the applicant's specific circumstances (Prophète v Canada (Citizenship & Immigration), 2008 FC 331, at para 17; Jarada v Canada (Minster of Citizenship and Immigration), 2005 FC 409, at para 28; Ahmad, at para 22).60 [47] In the instant, in view of the Appellants' circumstances, they have not shown the required individualized link. CONCLUSION [48] I find that the Appellants are neither Convention refugees nor persons in need of protection. The appeal is dismissed. (signed) James Sloan James Sloan January 11, 2021 Date 1 Exhibit P-2, Appellants' Record, at p. 15. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar, 2016 FCA 93, at para 103. 3 Ibid., at paras 69-74. See also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 4 The Appellants' argument that corroborating evidence is not required in view of the Maldonado presumption, raised in the context the RPD's finding regarding the discrimination against the minor appellants in education (Exhibit P-2, Appellants' Record, at p. 203, para 46), applies to any of the RPD's findings faulting them for a lack of adequate supporting evidence. (Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.)). 5 Ibid., at p. 190, para 10. 6 Maldonado, supra endnote 4. 7 RPD Rule 11, Refugee Protection Division Rules, SOR/2012-256. 8 Pazmandi v. Canada (Citizenship and Immigration), 2020 FC 1094 (CanLII), at para 25. 9 Ismaili v. Canada (Citizenship and Immigration), 2014 FC 84 (CanLII), at paras 31-55. 10 Luo v. Canada (Citizenship and Immigration), 2019 FC 823 (CanLII), at paras 18-22. 11 Pazmandi, supra endnote 8, at paras 25-26. Comments in square brackets are those of Justice McHaffie. 12 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 210. 13 Ibid., at p. 212. 14 Ibid., at p. 216. 15 Ibid., at p. 218. 16 Ibid., at p. 11, para 47. 17 I note that the male Appellant's testimony about the 2011 incident at a restaurant-when the waitress called other employees, the adult Appellants "got scared and [the male Appellant] said, 'we better leave.'" (transcript of RPD hearing, at p. 29)-appears to differ from his description of it in the BOC narrative-the waitress "called a few of her male staff colleagues, we continued arguing and the men started to push us out, they slapped me and my wife." (Exhibit RPD-1, RPD Record, Exhibit 2.1, at p. 29, para 19). I note this for the purposes of clarity and do not draw a negative credibility inference on this basis. 18 Somewhat confusingly, the RPD did not state whether, in setting out the evidence, it was accepting its truthfulness. However, in view of the fact that the RPD did not state that it had misgivings about this part of the Appellants' evidence, I will assume that it accepted it as true-its earlier concerns regarding credibility notwithstanding. 19 Exhibit RPD-1, RPD Record, at p. 11, para 45. 20 Ibid., at p. 13, para 58. 21 Ibid., at p. 13, para 59. 22 Ibid. 23 Exhibit P-2, Appellants' Record, at p. 199, para 30. 24 Abdalqader v. Canada (Citizenship and Immigration), 2018 FC 405 (CanLII). 25 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, reissued: Geneva, December 2011). 26 One exception is the statement in the report that, over the last 15 years, there has been a decrease by at least 50-60% in the enrolment of special needs students in "special schools". 27 Exhibit RPD-1, RPD Record, at p. 13, para 59. 28 Ibid., at para 60. 29 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689. 30 See Mallampally, where the Federal Court referred to a requirement that discrimination or harassment be "serious or persistent enough to amount to persecution." (Mallampally v. Canada (Citizenship and Immigration), 2012 FC 267 (CanLII), at para 27. 31 Abdalqader, supra endnote 24, at para 26. 32 "While not formally binding on signatory states, the Handbook has been endorsed by the states which are members of the Executive Committee of the UNHCR, including Canada, and has been relied upon by the courts of signatory states." (Ward, supra endnote 29, at 713-4). See also Horvath, Judit v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-3263-13), Gleason, April 1, 2014, 2014 FC 313 at para 23. 33 While it is true that paragraph 54 provides that, in order for discrimination to amount to persecution, it must relate to particularly important or basic rights such as those listed, this is not the only requirement. It also states that a finding that discrimination amounts to persecution will be made "only in certain circumstances" where the consequences of the discrimination are not merely prejudicial but of a "substantially prejudicial nature," and where the important or basic rights are not merely restricted but subject to "serious restrictions." 34 Exhibit RPD-1, RPD Record, at p. 13, para 60. 35 The Board must consider:"all of the events which may have an impact on a claimant's claim that he or she has a well founded fear of persecution, including those events which, if taken individually, do not amount to persecution, but if taken together, may justify a claim to a well founded fear of persecution." (Munderere v Canada (Minister of Citizenship and Immigration), 2008 FCA 84, 291 DLR (4th) 68, at para 42). 36 Exhibit RPD-1, RPD Record, at p. 11, para 47. 37 Munderere, supra endnote 35, at para 41. 38 Mete v. Canada (Minister of Citizenship and Immigration), 2005 FC 840 (CanLII), at para 4. 39 Canada (Minister of Citizenship and Immigration) v. Hamdan, 2006 FC 290 (CanLII), at paras 25 and 26. 40 Sagharichi v Canada (Minister of Employment and Immigration) (1993), 182 NR 398, [1993] FCJ no 796. 41 Ibid., at para 2. 42 Exhibit RPD-1, RPD Record, at p. 25, para 4. 43 Transcript of RPD hearing, at p. 29. 44 Ibid., at p. 5. 45 Ibid., at p. 9. 46 In Horvath, the Federal Court held: Jurisprudence on claims by Roma would suggest that in cases where an applicant has complained of physical attacks, the Court may be willing to accept the RPD's finding that such treatment constitutes discrimination and not persecution: Orban v Canada (Minister of Citizenship and Immigration), 2004 FC 559; Balla v Canada (Minister of Citizenship and Immigration), 2003 FC 1436; Szucs v Canada (Minister of Citizenship and Immigration) (2000), 100 ACWS (3d) 650. In these cases the Federal Court has found that the applicants only faced discrimination and not persecution, despite their history of violent physical attacks. Here the attacks on the Applicant were of a lesser degree and the Applicant did not make any serious effort to report the attacks to the police. Such conduct is consistent with the RPD's finding that the attacks were in the nature of harassment rather than persecution. (Horvath v. Canada (Citizenship and Immigration), 2011 FC 1350 (CanLII), at para 37). 47 Transcript of RPD hearing, at pp. 17-18. 48 The male Appellant testified they went to XXXX because "we wanted to make sure we would have a healthy baby [and] the delivery wouldn't have any problems because the hospitals, as you know, we don't get any help. Nobody looks at us if you do not have money." (Ibid., at p. 13) "All we knew is that we have to have money in order to pay for medical services. So, in order to be sure the baby is born healthy and there is no risk with the delivery, we decided to go XXXX." (Ibid.) When asked by his counsel about why they had decided to go to XXX for their children's births, he stated: "I can tell you about hospitals because I have my own problems and I went to the hospital and never been respected as a human being. You know that as gypsies we have to pay a lot of money for care there. And I was scared for my wife because we know many gypsy women die during birth in Romania." (ibid., p. 29). 49 Exhibit RPD-1, RPD Record, at p. 13, para 58. The RPD refered to Romania's membership in the European Union oversight and "formal reports by the Romanian government"; however, no evidentiary support was provided. 50 Ibid., at p. 13, para 61. 51 Arocha v. Canada (Citizenship and Immigration), 2019 FC 468 (CanLII). 52 Ibid., at para 23. 53 National Documentation Package (NDP) for Romania (May 31, 2019 version), item 13.4, pp. 9-10. See also items 2.1, 2.2, and 13.1. I note that, because the May 31, 2019 version of the NDP was relied on in the RPD's Decision, my references are to this version of the NDP. I note, however, that I have also considered the current NDP (May 29, 2020) in assessing forward-looking risk in accordance with the Board's Policy on National Documentation Packages in Refugee Determination Proceedings, June 5, 2019 (https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx), at s. 5(II). 54 Ibid., at item 13.4, pp. 11-14. See also items 2.1, 2.2, and 13.1. 55 Csonka v. Canada (Citizenship and Immigration), 2012 FC 1056 (CanLII), at para 70. 56 Jarada v. Canada (Minister of Citizenship and Immigration), 2005 FC 409 (CanLII), at para 28, relying on Ahmad v. Canada (Minister of Citizenship and Immigration), 2004 FC 808 (CanLII), [2004] F.C.J. No. 995 (F.C.); Gonulcan v. Canada (Minister of Citizenship and Immigration), 2004 FC 392 (CanLII), [2004] F.C.J. No. 486 (F.C.); Rahim v. Canada (Minister of Citizenship and Immigration), 2005 FC 13 (CanLII), [2005] F.C.J. No. 18 (F.C.) 57 Gaspar v. Canada (Citizenship and Immigration), 2018 FC 320 (CanLII), at para 20. 58 The Court cites, with approval, the finding of Justice Elliot in Hassan v. Canada (Citizenship and Immigration), 2017 FC 507, at para 5: Whether or not that finding [that the applicant lacked credibility] was reasonable, the RPD was still obligated to examine whether, on the basis of the country condition evidence, the daughters faced a serious possibility of gender persecution if they were returned to Sudan. It is well-established that where a claimant has not personally experienced a form of persecution, the RPD is nonetheless obligated to examine whether a personal risk can be inferred from the experiences of similarly-situated persons. 59 Gaspar, supra endnote 57, relying on Olah v. Canada (Citizenship and Immigration), 2017 FC 921, at para 14, where the Court relied on Balogh v. Canada (Citizenship and Immigration), 2016 FC 426 (CanLII). 60 Balogh, ibid., at para 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-03362 TC0-03363 / TC0-03364 / TC0-03365 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français