Date: 20030501
Docket: IMM-3279-02
Montréal, Quebec, May 1, 2003
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
DUMITRU TUDOR
MARIA TUDOR
Plaintiffs
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
For reasons filed today, this application for judicial review is dismissed. No certified question was suggested.
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"François Lemieux"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20030501
Docket: IMM-3279-02
Neutral citation: 2003 FCT 544
BETWEEN:
DUMITRU TUDOR
MARIA TUDOR
Plaintiffs
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
LEMIEUX J.
[1] This application for judicial review is asking the Court to quash the rejection by the Refugee Division ("the panel") on June 11, 2002, of a second application by the plaintiffs, a couple with Roumanian citizenship and gypsy nationality, to be recognized as refugees.
[2] Their first claim was dismissed on May 19, 1999, on the ground that their fear of persecution had no connection to their gypsy nationality, but Mr. Tudor was a victim of vengeance and corruption by an individual, a former minister and police chief in Roumania, Gen. Danescu.
[3] The plaintiffs returned to Roumania in September 1999 and left it in April 2001.
[4] On their second claim, the panel applied the rules laid down in the judgment by Rothstein J., as he then was, in Vasquez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1769, which applying the res judicata rule limits consideration of the claim to new facts which occurred after they left Canada.
[5] The new facts alleged by the plaintiffs amount to the following: (1) mistreatment by the police at the airport, confiscating their passports, and subsequently by the SRI police, which questioned, threatened and insulted them; (2) initiation of an action by Mr. Tudor against Gen. Danescu's nephew, who had become an advisor to the Minister of the Interior, to recover possession of his "Tudor's" restaurant in Bucharest; (3) in September 2000 he joined the gypsy party, Partida Romilo; (4) in December 2000 he was threatened with death [TRANSLATION] "if you continue to bother the general"; (5) in February 2001 he was attacked by unknown individuals who told him [TRANSLATION] "the general doesn't want to hear your name again"; (6) advice from his lawyer that Danescu was too important a person and he should drop his action against his nephew. In his Personal Information Form he wrote that his counsel [TRANSLATION] "told me he was afraid to represent me against the general and I should find another lawyer".
[6] The plaintiffs filed as Exhibit P-7 a letter dated March 4, 2002, written by the plaintiffs' Roumanian lawyer to their Canadian lawyer.
[7] The panel concluded:
(a) the problems encountered by the defendants were connected to their action against a relative of the former Minister Danescu and they were in danger of becoming victims of vengeance and corruption, which according to precedent is not among the five grounds in the Convention;
(b) [TRANSLATION] "Mr. Tudor's very limited [knowledge] of the Partida Romilor adversely affected the credibility of his statement that he was a member of the Partida Romilor and was persecuted for activities connected with his nationality";
(c) with the change of government in December 2000, the panel felt that he could be protected by leading figures in the Iliescu government.
[8] In my opinion, the panel's conclusion that Mr. Tudor's testimony reflects a general lack of credibility must be rejected for three reasons: (1) the panel misunderstood the evidence in Exhibit P-7 - the panel concluded that Mr. Tudor told his Roumanian lawyer [TRANSLATION] "what to write" in his letter, and for that reason attached no evidentiary value to it; analysis of Mr. Tudor's testimony in no way supports this conclusion; (2) however, the panel used Exhibit P-7 as a basis for concluding [TRANSLATION] "on reading the letter, the panel considers that the claimant is likely to be the victim of vengeance and corruption by Danescu" and (3) in accordance with Hilo v. Minister of Employment and Citizenship (1991), 130 N.R. (F.C.A.), the panel must reach a conclusion regarding absence of credibility in "clear and unambiguous" language. The panel's reasons do not meet that requirement.
[9] However, the courts have held that "this Court may confirm the Trial Division's judgment, despite errors committed by the panel if 'no properly instructed panel . . . could have come to a different conclusion'" (see Ramirez v. Canada, [1992] 2 F.C. 306 (F.C.A.), at 323 and 324, and Sivakumar v. Canada [1994] 1 F.C. 433 (F.C.A.), at 449).
[10] In my opinion, that is the case here. If a panel accepts the testimony and evidence of claimants as trustworthy, they may not be recognized as Convention refugees because the source of their persecution is unrelated to the five grounds in the Convention.
[11] Mr. Tudor's Personal Information Form leaves no doubt on this point. All his problems since his return in 1999 were related to Mr. Danescu.
[12] In my opinion, the background is the same as the circumstances of his first claim.
[13] The plaintiffs' first claim was dismissed on the ground that personal vengeance is not related to the Convention, the panel relying on the judgment by Tremblay-Lamer J. in Marincas v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1254; see also Pierre Louis v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 420, in which Décary J.A. wrote: "it is apparent on reading the record that . . . the fear felt by the appellants was fear of a police officer who was seeking, at most, to avenge himself personally for an insult offered to him by the appellants. This is not fear of persecution".
[14] For these reasons, this application for judicial review is dismissed. No certified question was suggested.
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"François Lemieux"
Judge
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Montréal, Quebec
May 1, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030501
Docket: IMM-3279-02
Between:
DUMITRU TUDOR
MARIA TUDOR
Plaintiffs
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-3279-02
STYLE OF CAUSE: DUMITRU TUDOR
MARIA TUDOR
Plaintiffs
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 29, 2003
REASONS FOR ORDER: LEMIEUX J.
DATE OF REASONS: May 1, 2003
APPEARANCES:
Alain Joffe FOR THE PLAINTIFFS
Suzon Létourneau FOR THE DEFENDANT
SOLICITORS OF RECORD:
Alain Joffe FOR THE PLAINTIFFS
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec
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