2024 RLLR 36

Citation: 2024 RLLR 36
Tribunal: Refugee Protection Division
Date of Decision: June 6, 2024
Panel: T. Thomas
Counsel for the Claimant(s): James Hill Lawson
Country: Romania
RPD Number: TC2-16171
Associated RPD Number(s): N/A
ATIP Number: A-2025-00128
ATIP Pages: N/A

REASONS FOR DECISION

[1] The Claimant, XXXX XXXX, a citizen of Romania, claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).

DETERMINATION

[2] Having considered the totality of the evidence, I find the Claimant is a Convention refugee pursuant to s. 96 of the IRPA.

ALLEGATIONS

[3] The Claimant’s allegations are found in her Basis of Claim (“BOC”) form. The Claimant alleges to be a citizen of Romania and no other country. She alleges a fear of discrimination amounting to persecution in Romania, from the police and from society in general, on account of her Roma ethnicity and her sexual orientation. She alleges that state protection is not available to her in Romania and there is nowhere she can live safely in that country.

ANALYSIS

[4] In deciding this claim, I have considered all the evidence before me, including the Claimant’s testimony, the documents entered as exhibits in this claim, and the objective evidence contained in the National Documentation Package (“NDP”) for Romania.[1] Tab 2.1 of the NDP was updated on May 31, 2024, and reports that “there were no significant changes in the human rights situation in Romania during the year.” As there have been no substantive changes to the country condition evidence, I continue to rely on the NDP in force at the time of the hearing.

[5] I have also considered and applied Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board,[2] as well as Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.[3]

[6] I also note that while the Claimant has travelled to various countries where she tried to obtain work, including spending time on and off in Italy, the evidence before me does not establish that she remained in these countries on valid status or that she otherwise had or had access to 1E status while in these countries. I therefore find this is not an issue arising on the evidence before me.

Identity

[7] I find the Claimant’s personal and national identity as a national of Romania established on a balance of probabilities by the copy of her Romanian passport on file, at Exhibit 1.

Nexus

[8] I find there is a link between the Claimant’s fears and a Convention ground. Her fears stem from her Roma ethnicity and her sexual orientation. Therefore, I have assessed her claim pursuant to s. 96 of the IRPA.

Well-founded fear of persecution

[9] There is a principle in Canadian refugee law that where a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their veracity.[4] I note that the determination as to whether a claimant’s evidence is credible is made on a balance of probabilities. In making my determination, I am cognizant of the difficulties faced by claimants in establishing their claims, including the passage of time and recollection of details, cultural factors, and the stress inherent in responding to oral questions virtually and through an interpreter. I have also considered the Claimant’s personal characteristics, including age and level of education.

[10] The Claimant’s testimony at the hearing was difficult to obtain. The Claimant was very emotional throughout the hearing and often had difficulty providing complete, responsive, or direct answers to the questions she was asked throughout the hearing as a result. The Claimant testified that since coming to Canada she had been diagnosed with significant medical conditions, including XXXX, and has been on medication to treat these conditions. She did not provide the name of the medication when asked but testified that it is very serious medication and it has several significant side effects. She testified that she had not taken her medication the day of the hearing because of its side effects and because she wished to be clear minded for her hearing. No evidence of the Claimant’s medical conditions or the medication she was on had been provided in advance of the hearing. The Claimant also did not provide any other corroborating documentary evidence to support her claims.

[11] Despite the absence of medical documents to corroborate these allegations as to her medical and XXXX XXXX conditions, it was clear throughout the hearing that the Claimant was in a state of great distress. From her testimony at the hearing, it appeared that she carries – at the least – some guilt around her sexual orientation and the impact this and her fleeing Romania has had on her children, who remain in that country. It appeared to me that these feelings had some impact on her ability to testify. Additionally, the Claimant testified that she has only completed XXXX or XXXX years of education in Romania. She worked on-and-off as an XXXX XXXX XXXX and XXXX in that country. I have considered these factors in assessing the Claimant’s credibility. I have also kept in mind and applied the guidance that is found in Chairperson’s Guideline 9 and Chairperson’s Guideline 4 in assessing the Claimant’s credibility.

[12] The Claimant identifies as a lesbian. She testified that she had been discriminated against throughout her life because of her Roma ethnicity, but that when her sexual orientation was discovered she was also outcast from her Roma community. She testified that her children are still sometimes bullied because others in the community know that the Claimant is a lesbian. The Claimant testified that she tried to marry twice, but neither relationship worked out for her. She testified that she has always been in love with her former same-sex partner, A., whom she met as a young girl in Italy and with whom she continued a relationship on and off throughout their lives, initially unbeknownst to their respective husbands. The Claimant testified that her mother had discovered the relationship when the two were young girls and took steps to try to separate them. The Claimant testified that her mother has a hard time coming to terms with the Claimant’s sexual orientation, but still loves the Claimant as she is her daughter. They are still in contact, and the Claimant’s mother helps to care for the Claimant’s children.

[13] Some of the testimony regarding how their relationship was discovered and what occurred thereafter were inconsistent with the allegations in the Claimant’s narrative. For example, the Claimant’s testimony regarding how her relationship with A. was discovered by the family, that they were discovered while in the Netherlands, and the evidence regarding where and with whom the Claimant and A. stayed after leaving Romania are either in conflict with or omitted from the Claimant’s narrative.

[14] When asked about the omission of her allegation, raised at the hearing, that she and A. left Netherlands because they were located there, the Claimant testified that she had not included this because she did not have the courage to speak. I find that the Claimant’s explanation for these issues was not reasonable. The Claimant arrived in Canada in XXXX 2021 and signed her BOC form in January 2022. She was represented by Counsel at the time. She had the capacity at that time to outline various details related to her relationship and the threats they allegedly received from the family while in the Netherlands. I therefore do not find that the Claimant’s testimony explains why she did not have the ability to include that she and A. had been located by the family while in the Netherlands.

[15] When asked about the inconsistencies between her testimony and narrative, the Claimant testified that she did not want to create problems for anyone. As noted earlier, the Claimant also did not provide supporting documentary evidence that could assist in establishing these allegations or addressing the issues arising from the conflicting evidence. When asked about the absence of, for example, letters of support from the person she and A. stayed with in the Netherlands or the friends she alleged at the hearing had warned her when the families had located them in that country, the Claimant testified that they would not want to provide such letters and she would never ask them because she essentially did not want to inconvenience them or get them into trouble.

[16] I do not find it reasonable for the Claimant to not have even inquired into the willingness or ability of these individuals to provide supporting letters. I find this even more unreasonable given that these individuals lived in the Netherlands and not in Romania. The Claimant did not establish that in asking them to provide evidence, or if they had done so, that she would be putting them in the way of danger.

[17] I have concerns, therefore, about the Claimant’s allegation that her relationship with A. was discovered by A.’s family and that they fled Romania as a result, or her allegations about being located by family while in the Netherlands. In the absence of supporting evidence, I find these elements of the Claimant’s claim not made out on a balance of probabilities.

[18] However, I found the Claimant credible regarding her having been in a relationship with A. and her orientation generally. The Claimant spoke about how she and A. met, how she tried to do what was expected of her by marrying twice, and how both marriages ended in divorce. She spoke about the issues her children face now in Romania because it is known that their mother is a lesbian. I found the Claimant’s testimony on these matters to be consistent, both internally and with the allegations in her narrative, generally coherent, and spontaneous.

[19] The Claimant also testified about her experiences as a Roma person. She testified about the cultural traditions that conflicted with her feelings for and relationship with A. She testified that she had only been able to study for XXXX or XXXX years, and experienced significant interruptions in her studies. She testified that she was marginalized and called derogatory names while in school. She testified that she worked in XXXX and that she would sometimes XXXX. She testified that there were not many opportunities for work, because she had no education. I note the lack of education is a result of the discrimination and mistreatment she alleged to have faced while in school. The Claimant explained that when she would go for jobs, employers would refer to her by derogatory terms and pay her whatever they wanted. She testified that she would have to put up with this behaviour because she had to do so to survive. She testified that the XXXX XXXX XXXX was not stable or consistent. She testified that in Romania, her family was discriminated against and perceived as thieves and criminals; therefore, they would move between Romania and Italy, to try to find work. While in Italy, they lived with other Roma in tents and caravans. She testified that she had also tried going to the U.S. while married with her first husband but had to return to Romania because her mother had gotten sick and because she was not able to support herself in the States.

[20] Ultimately, weighing the concerns against the Claimant’s testimony, I find that the Claimant was credible as relates to certain elements of her claim. Ultimately, given the inconsistencies and omissions between the testimony and the narrative, which I find were not reasonably explained, and the absence of corroborating documentary evidence to support the allegations or outweigh the concerns, I find the Claimant has not credibly established that her relationship with A. became known to their families and in their community, nor has she credibly established that she and A. were located by their families in the Netherlands, causing them to leave that country.

[21] However, I find the Claimant’s testimony credibly establishes that she was in an on-and-off relationship with another woman, A., which they tried to hide for fear of being ostracized by their families and community. I also find that while not extremely detailed, the Claimant’s testimony regarding her experiences as a Roma person in Romania were coherent and generally straightforward and are consistent with the objective evidence before me. Given the nature of the claim, I do not find that the failure to claim in the countries the Claimant stayed in before arriving in Canada sufficient to outweigh the Claimant’s testimony as relates to establishing her sexual orientation or her ethnicity. As such, I find that the Claimant has credibly established that she is more likely than not a lesbian, as alleged, and that she is Roma.

[22] I find when taken cumulatively and in light of the objective evidence which will be outlined shortly, the treatment of Roma and SOGIESC persons in Romania amounts to persecution. I find that she has established a subjective fear of persecution in Romania.

Objective Basis

[23] I find there is an objective basis for the Claimant’s claim.

[24] The NDP reports that that violence and discrimination against Roma remains widespread and a “serious problem.” Roma and SOGIESC people continued to face systemic discrimination. Police violence against the Roma community continues to be a significant human rights issue. Negative attitudes and stereotypes about Roma are prevalent in society and are promoted through the media and political campaigns, which leads to the persistence of hate crimes. Roma and SOGIESC persons face systemic discrimination and exclusion in areas ranging from healthcare, education, and employment to housing access and justice. There are “few employment opportunities” and a high unemployment rate for Roma and they face a higher-than-average risk of poverty, housing discrimination, below-average education levels, lower life expectancy, inadequate healthcare, and poor access to government services. Roma have also been used as scapegoats for the pandemic and anti-Roma racism has intensified. The NDP also reports that the number of reported incidents of violence against women, including femicides, remain high, and gender discrimination remains a problem in many aspects of life.[5]

[25] While same-sex relations were decriminalised in 2001, the Civil Code prohibits same-sex marriage, and does not recognise civil partnership. The SOGIESC community is the subject of legislative proposals with the aim of restricting their rights and is the target of acts of aggression during NGO-organised events. Public discourse remains hostile to sexual and gender minorities, their right to freedom of movement is not respected, and SOGIESC individuals and gatherings are attacked without legal recourse. Hate speech is on the rise and there has been an increase in hate crimes. A November 2018 survey cited in the NDP reveals that 74% of the population do not trust a SOGIESC person, 59% would not accept them in the family, 52% would not accept them as a friend, and 32% would refuse to have an LGBT person as a work colleague.[6]

[26] In light of the foregoing, I find the objective evidence corroborates the Claimant’s allegations of harm on return to Romania. I find that she faces a well-founded fear of persecution on account of her sexual orientation and her Roma ethnicity.

State Protection

[27] Except in situations of complete breakdown, states are presumed to be able to protect their citizens. This presumption can only be rebutted with clear and convincing evidence of a state’s inability or unwillingness to provide adequate and effective protection to a claimant.

[28] The NDP reports that victims of hate crimes, including the Roma and SOGEISC persons, remain highly reluctant to approach the police as they do not trust that their rights and concerns will be adequately considered and protected. Police misconduct and ethnic profiling are not uncommon but remain unreported. According to activists, the Romanian justice system tends to rule in favour of the police, particularly in cases brought by the Roma.[7] There are reports from non-governmental organizations and the media that police mistreat and abuse Roma, primarily using excessive force, including beatings. Police often discourage Romani women and girls from filing complaints.[8] Additionally, the NDP reports that “Romania has been repeatedly condemned by European Courts in the last few years, for having failed to prevent and prosecute attackers who targeted LGBT individuals and gatherings.”[9] The number of criminal complaints affecting SOGIESC individuals and groups that have not been resolved is constantly growing.[10]

[29] In light of the foregoing, I find there is clear and convincing evidence to rebut the presumption of state protection in the present claim. I find that the state is neither willing nor able to provide adequate or operationally effective state protection.

Internal Flight Alternative

[30] I find the evidence before me establishes, on balance, that the situation facing Roma and SOGEISC persons throughout the country is the same. I therefore find that there is no viable IFA available to the Claimant in Romania.

DECISION

[31] Given the above and having considered the totality of the evidence before me, I find the Claimant has established that she would face a serious possibility of persecution based on her Roma ethnicity and sexual orientation if returned to Romania.

[32] I therefore find the Claimant is a Convention refugee pursuant to s. 96 of the IRPA and accept her claim.

——— REASONS CONCLUDED ———

[1] Exhibit 3.1.

[2] Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board Guidelines issued by the Chairperson pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act, effective July 18, 2022.

[3] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics. Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, effective December 17, 2021.

[4] Maldonado, [1980] 2.F.C. 302 (C.A.); Nadarajah v. Canada (Minister of Citizenship and Immigration), 2006 FC 1204, at pars. 11-14.

[5] Exhibit 3.1, National Documentation Package, Romania, 29 September 2023, tab 2.1: ​Romania. Country Reports on Human Rights Practices for 2022.​​​ United States. Department of State. 20 March 2023; See also, tab 2.2:​Commissioner for Human Rights of the Council of Europe: Dunja Mijatović. Report Following Her Visit to Romania from 12 to 16 November 2018. Council of Europe. Commissioner For Human Rights. 28 February 2019. CommDH(2019)5; See also, tab 2.3: ​Romania. Freedom in the World 2023.​. Freedom House. 2023; See also, tab 2.10: ​Romania. Amnesty International Report 2022/23: The State of the World’s Human Rights.​. Amnesty International. 27 March 2023. POL 10/5670/2023; See also, tab 13.4: ​Situation and treatment of Roma, including ability to access housing, employment, education, and healthcare; state protection; impact of COVID-19 (2019–July 2021). Immigration and Refugee Board of Canada. 11 August 2021. ROU200706.E.

[6] Exhibit 3.1, tab 2.7: ​Romania. Country report: Non-discrimination.​. European Commission. Directorate-General for Justice and Consumers. Romanița Iordache. 2022.

[7] Exhibit 3.1, tab 10.2: ​Racism, police brutality and online hate: Why Romania’s Roma are no nearer their Black Lives Matter moment. Balkan Investigative Reporting Network. Andrei Petre. 31 March 2021; See also, tab 13.1: ​Fourth Opinion on Romania – adopted on 22 June 2017. Council of Europe. Advisory Committee on the Framework Convention for the Protection of National Minorities. 16 February 2018. ACFC/OP/IV(2017)005; See also, tab 13.4.

[8] Exhibit 3.1, tab 2.1.

[9] Exhibit 3.1, tab 6.3: ​Joint Stakeholder Report on LGBTI rights and Sexual and Reproductive Health and Rights in Romania. ACCEPT Association et al. May 2023.

[10] Ibid.