Date: 20100202
Docket: IMM-1191-09
Citation:
2010 FC 113
Ottawa,
Ontario, February 2, 2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
GHEORCHE CALIN LUPSA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and background
[1]
This
application for judicial review filed by Mr. Lupsa, a citizen of Romania, pertains to
the decision, dated February 5, 2009, denying his second pre-removal
risk assessment (PRRA) application (the decision). My colleague, Justice
Beaudry, on April 6, 2009, dismissed his motion for a stay of removal, being
of the view that no serious issue against the decision had been demonstrated.
However, Mr. Lupsa remained in Canada following the granting of an
administrative stay by the Minister based on medical evidence of his inability
to travel.
[2]
Hiding
in a ship’s container, Mr. Lupsa arrived in Canada in 1992.
His efforts to remain here are numerous. I will summarize them briefly:
1)
Refugee
claim denied in 1993 but decision overturned on consent of the parties on
February 18, 1994, by a judge of this Court before the judicial review could be
heard (see Docket No. IMM-2006-93). A hearing de novo was not held
before the Refugee Division (the Division) given the applicant’s absence. In
1996, the Division deemed his claim for refugee protection to be abandoned.
2)
Two
applications for permanent residence were rejected; the first, in 2000, on
grounds of medical inadmissibility and the second, in 2004, for
inadmissibility on grounds of serious criminality.
3)
In
July 2005,
he filed his first PRRA application, which was rejected in February 2006,
as well as his application for judicial review of that decision. In her judgment
dated March 14, 2007 (see: Lupsa v. Canada (Minister of Citizenship and Immigration), 2007 FC 311), my colleague Justice Tremblay-Lamer found
that the evidence before her was insufficient to establish that he was wanted
by the authorities in his country on charges of sedition under article 155 of the Romanian Penal Code. However, in her reasons,
she indicated that the claimant could make another PRRA application in order to
assess evidence which had not been before the PRRA officer in February 2006,
but which had been submitted to the Court when a stay motion was granted.
4)
On
May 18, 2006, he applied for an exemption on humanitarian and
compassionate grounds under section 25 of the Immigration and Refugee Protection
Act (IRPA) on the basis of his experiences in Romania from 1981 to
1982, his fragile health, his 1999 marriage to Sabina Aldea, the best interests
of his two children, his rehabilitation and his establishment in Canada. On
January 12, 2009, the Minister’s Delegate refused the exemption after
weighing the nature of his criminal activities, the risk of reoffending, his
family in Canada and abroad, the best interests of the children, his
establishment in Canada, the current conditions in Romania, including the fact
that the ruling party in Romania has changed significantly since 1992, especially
since 2004, and the medical services in that country. The Minister’s Delegate
was of the opinion that humanitarian considerations did not outweigh the
finding of inadmissibility on grounds of serious criminality. According to the
Delegate, ‘‘[t]he positive factors in this case simply do not counterbalance
these grim facts sufficiently…’’. On October 16, 2009, my colleague
Justice Shore dismissed
the judicial review of that decision (see: Lupsa v. Canada (Minister
of Citizenship and Immigration), 2009 FC 1054).
5)
In October 2007, the applicant filed a second
PRRA application, essentially citing the same facts and risks as those
submitted and assessed in his first PRRA application, with the addition of new
pieces of evidence, in particular, the following exhibits:
· P-3 Notice
to appear at the police station in the municipality of Alba Iulia dated
January 26, 1990, requiring him to appear on January 28, 1990, for
an offence under article 155 of the Penal Code (P.C.) of Romania.
· P-4 Copy
of a handwritten notice to appear dated 26-06-1990 issued by the police
requiring him to appear on July 1, 1990, to shed light on his situation
in accordance with article 155 P.C.
· P-5 Handwritten
letter dated 16.11.1994, written in Romanian, with a partial translation
into French.
· P-6 ‘‘Partidul
National Liberal’’ membership card, not translated.
· P-7 Invitation
to a National Liberal Party meeting on September 3, 1990.
· P-16 Copy
of two handwritten statements: one dated 03.08.2006 from his sister
Luput Manuela, and the other, dated 26.07.06, from a certain ‘‘Habian
Miela’’.
The panel’s decision
[3]
After
having listed the facts in support of the alleged risks (risk of arrest and of
persecution by Romanian authorities for seditious acts, punishable by 15 to 25
years of imprisonment and risks of persecution based on his political opinion),
PRRA Officer Dostie (the officer) wrote:
[translation]
The risks cited in this application as well
as the facts presented are essentially the same as those submitted and
assessed in the first PRRA application. At the time of the first
application, some pieces of evidence were not available. This
application has therefore been made in order to have an assessment of the
various pieces of evidence that were unavailable at the time of the first
application. [Emphasis added.]
[4]
The
officer indicated that among the many exhibits submitted by the applicant’s
counsel,
[translation] ‘‘particular
attention would be given to certain pieces of evidence, given their connection
to the applicant’s personal situation and the fact that this evidence was not
available at the time of the previous application’’.
[5]
She
began by assessing Exhibits P-3 and P-4, the notices to appear issued by the
police; she dismissed them, being of the view that
[translation]
[n]otwithstanding the foregoing, for the
purposes of this application, I find the issue has less to do with
determining whether the applicant was summoned by the municipal police of Alba
Iulia regarding seditious acts, almost twenty years ago, and more to do with
establishing whether these elements would still be a source of risk to the
applicant should he return to Romania, if the applicant is still considered
to be a person of interest to the authorities in his country. [Emphasis
added.]
[6]
On
this point, she found that [translation]
‘‘[T]he assessment of the evidence, including the sequence of various events
between the first notice in January 1990 and his leaving Romania in 1992, do
not support such conclusions’’.
[7]
Notwithstanding
Mr. Lupsa’s claim that he had been arrested several times between January
1990 and when he left Romania in 1992, the officer found that
he was no longer a person of interest to the authorities, for the following
reasons: (1) he has never been charged with seditious acts; (2) while the
authorities would be able to find him easily, they have not pursued him; (3) he
has not submitted any evidence proving that he had been arrested and detained
on several occasions; (4) in July 1992, over seven months after having
obtained his passport from these same authorities and more that two years after
the notices to appear, he left Romania legally; and, (5) the information in his
docket fails to explain why the police would summon him repeatedly without
pursuing the matter further.
[8]
The
officer was therefore not satisfied that the evidence submitted by Mr. Lupsa
proved that the authorities were still after him.
[9]
As
for his mother’s letter written in November 1994, the officer noted
that: (1) the letter is only partially translated; (2) it is the only letter
from his mother in the record; (3) it does not appear that the police were
harassing her as retaliation against him; and, (4) the letter, written almost
15 years ago and two years after he left, does not objectively establish
that the police are still after her son.
[10]
The
officer arrived at the same conclusion with regard to his sister’s letter: (1)
it is her only statement; (2) the letter was written more that 14 years after
he left; (3) no threats by the authorities were issued against him; (4) she had
not been bothered by the authorities; and, (5) the last event described in the
letter occurred 8 months prior to her statement.
[11]
The
same reasoning was applied to Ms. Mirela’s letter dated July 14, 2006. The
officer was of the view that the letter fails to show any link between Ms.
Mirela and the applicant other than the fact that she purchased the family
home. According to the officer, it is not plausible that the Romanian police
would repeatedly question this person about the applicant’s whereabouts.
[12]
Furthermore,
the officer considered another factor in her analysis:
[translation]
Other than these statements, two of
which are from members of his family, there is a notable lack of any piece of
evidence such as an arrest warrant, a notice to appear in court or other
documents that would establish in any objective way that the applicant was
being sought by the authorities. There is also a lack of evidence with regard to
the multiple arrests and convictions the applicant alleges to have been a
victim of between 1990 and when he left Romania in 1992.
Given the foregoing, I give little weight
to this evidence, which I consider to be self-serving. [Emphasis added.]
[13]
The
applicant also alleged that if he were to return to Romania he would
face risks on account of his political opinion and, in support of this
allegation, submitted as evidence his National Liberal Party (NLP) membership
card and an invitation, dated September 30, 1990, to one of their
meetings. According to the officer, other than these documents, P-6 and P-7, there
is very little evidence in his file establishing his political involvement. She
noted that, after the fall of Ceausescu in 1989, the NLP was reorganized
and has been part of the government since 1991. In 2004, its leader was
elected Prime Minister.
[14]
Regarding
the alleged risks linked to his political opinion the officer found the
following:
[translation]
As is shown in the documentary evidence,
since Ceausescu’s fall in 1989, there are several political parties in Romania and they are lawful
participants in the government. Romania is a constitutional democracy and,
despite reports of some irregularities, the last general election was
considered to have been free and fair. Since the applicant left Romania in 1992, many significant
changes have occurred, not the least of which was the country’s entry into the
European Union in January 2007. In spite of the continuing presence of
several societal problems such as corruption, as illustrated by the
documentary evidence submitted by the applicant’s counsel, the country’s entry
into the European Union has helped promote the establishment of a democratic
society founded on the rule of law and continues to do so today. After
reviewing the evidence, I find that the applicant has failed to discharge his
burden of establishing to my satisfaction the existence of personal risks based
on his political opinion. [Emphasis added.]
Analysis
a) The applicant’s claims
[15]
Lupsa’s
counsel raised the following arguments against the decision:
1)
That the
officer disregarded or excluded relevant evidence. Specifically, she failed to
take into account evidence prior to 1990 regarding the history of persecution
of his father, of his mother and of himself. She therefore argued that the
officer failed to assess his personal situation. She cited Galan v. Canada
(Minister of Citizenship and Immigration), 2007 FC 749 and Bengabo v. Canada (Minister of Citizenship and Immigration), 2009 FC 186.
2)
That the
officer also disregarded some recent evidence, including the reopening of the
investigation into the death of General Nuta.
3)
That the
officer failed to comply with section 167 of the Immigration and Refugee
Protection Regulations (IRPR) when she determined that Mr. Lupsa lacked credibility
without having called him to a hearing.
4)
That the
officer should have applied subsection 108(4) of the IRPA because of the events
experienced by Mr. Lupsa between 1981 and 1992.
b) Standard of review
[16]
In
my view the submissions by the Minister’s counsel regarding the standard of
review are well founded in light of the Supreme Court of Canada decisions in Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir)
and in Canada (Minister of Citizenship and
Immigration) v. Khosa,
2009 SCC 12 (Khosa). The officer’s decision must be reasonable but the
reasonableness of the risk assessment calls for great deference since it rests
essentially on an assessment of the facts.
[17]
In Khosa,
Justice Binnie, writing for the majority, outlined Parliament’s intent with
regard to paragraph 18.1(4)(d) of the Federal Courts Act, which allows this Court
to set aside a decision of a federal tribunal if such a decision is based ‘‘on
an erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it’’. He is of the opinion that this
paragraph does not represent a standard of review legislated by Parliament but
rather a ground for review. He adds the following at paragraph 46 of his reasons:
46 More generally,
it is clear from s. 18.1(4)(d) that Parliament intended
administrative fact finding to command a high degree of deference. This is
quite consistent with Dunsmuir. It provides legislative precision to the
reasonableness standard of review of factual issues in cases falling under the Federal Courts Act. [Emphasis added.]
[18]
However,
issues relating to the application of subsection 108(4) of the IRPA and
section 167 of the IRPR must be reviewed on a correctness standard because they
raise questions of mixed law and fact.
c) Certain principles
[19]
Justice
Sharlow of the Federal Court of Appeal in Raza et al v. The Minister of
Citizenship and Immigration et al, 2007 FCA 385 set out certain principles
with regard to the statutory scheme regarding pre-removal risk assessments
under the IRPA (the scheme). This scheme needs to be analyzed to find out
whether section 96 (refugee claim) or section 97 (claim for protection) of the
IRPA applies to this case.
[20]
The
purpose of the scheme is found in Canada’s domestic and international
commitments to the principle of non-refoulement, which holds that refugee
claimants should not be removed from Canada
to a country where they would be at risk of persecution, torture, risk to life
or risk of cruel and unusual treatment or punishment. Such commitments
require that risk be reviewed prior to removal. [Emphasis added.]
[21]
A PRRA
application by a failed refugee claimant is not an appeal or reconsideration of
the decision of the Refugee Division; however, according to the judge: ‘‘Nevertheless,
it may require consideration of some or all of the same factual and legal
issues as a claim for refugee protection. In such cases there is an obvious
risk of wasteful and potentially abusive relitigation. The IRPA mitigates that
risk by limiting the evidence that may be presented to the PRRA officer. The
limitation is found in paragraph 113(a) of the IRPA.’’
[22]
At
paragraph 13 of her reasons in Raza, Justice Sharlow wrote:
[13] As I read paragraph 113(a), it is based on the premise that a
negative refugee determination by the RPD must be respected by the PRRA
officer, unless there is new evidence of facts that might have affected the
outcome of the RPD hearing if the evidence had been presented to the RPD.
Paragraph 113(a) asks a number of questions,
some expressly and some by necessary implication, about the proposed new
evidence. I summarize those questions as follows:
1. Credibility: Is the
evidence credible, considering its source and the circumstances in which it
came into existence? If not, the evidence need not be considered.
2. Relevance: Is the evidence
relevant to the PRRA application, in the sense that it is capable of proving or
disproving a fact that is relevant to the claim for protection? If not, the
evidence need not be considered.
3. Newness: Is the evidence
new in the sense that it is capable of:
a) proving the current
state of affairs in the country of removal or an event that occurred or a
circumstance that arose after the hearing in the RPD?
b) proving a fact that was
unknown to the refugee claimant at the time of the RPD hearing?
c) contradicting a finding of
fact by the RPD (including a credibility finding)?
If not, the evidence need not be considered.
4. Materiality: Is the
evidence material, in the sense that the refugee claim probably would have
succeeded if the evidence had been made available to the RPD? If not, the
evidence need not be considered.
5. Express statutory
conditions:
a) If the evidence is capable
of proving only an event that occurred or circumstances that arose prior to the
RPD hearing, then has the applicant established either that the evidence was
not reasonably available to him or her for presentation at the RPD hearing, or
that he or she could not reasonably have been expected in the circumstances to
have presented the evidence at the RPD hearing? If not, the evidence need not
be considered.
b) If the evidence is capable
of proving an event that occurred or circumstances that arose after the RPD
hearing, then the evidence must be considered (unless it is rejected because it
is not credible, not relevant, not new or not material). [Emphasis added.]
d) Applicability in this case
[23]
In the
present case, this is not a case of a claimant who was rejected by the Refugee
Division. In fact, that negative decision was reversed by Justice Strayer in
1994 and his refugee protection claim was referred back to the Refugee Division
for redetermination. However, the applicant failed to show up for the hearing,
prompting the Division to deem his claim for refugee protection abandoned.
[24]
The
applicant, however, is now in a similar situation, considering that on February
10, 2006, Officer Lajoie rejected his first PRRA application. A reading of Officer
Lajoie’s decision shows that he was very familiar with the applicant’s history,
especially the facts relating to the period between 1981 and 1992. These facts
are described in pages 2 and 3 of his decision. The decision was upheld by my
colleague Justice Tremblay-Lamer, in Lupsa, dated March 22, 2007. She
dismissed his application for judicial review, being of the opinion that Officer
Lajoie ‘‘made no reviewable error in concluding that he did not have sufficient
evidence before him to find that the applicant would face personalized risks
if he were to return to his country’’. She nonetheless added the following:
29 With regard to the evidence that was
not before the PRRA officer and that the applicant filed on his stay motion, I
note that the applicant could always file a second application for protection
under section 165 of the Immigration and Refugee Protection Regulations, SOR/2002-227,
if he considers it advisable to have this new evidence assessed.
[25]
Justice
Beaudry had an opportunity to review the outcome of Mr. Lupsa’s second PRRA
application. He was of the view that the officer had asked herself the right
question when she considered that the issue had [translation] ‘‘less to do with determining whether the
applicant was summoned by the municipal police of Alba Iulia regarding seditious
acts almost twenty years ago, and more to do with establishing whether these
elements would still be a source of risk to the applicant should he return to
Romania, if the applicant is still considered to be a person of interest to
the authorities in his country’’. In my view, the officer considered the
existence of the notices to appear to be an established fact during her
assessment.
[26]
Moreover,
on January 12, 2009, the Minister’s Delegate refused Mr. Lupsa’s application
for an exemption under section 25 of the IRPA to allow him to remain in Canada, notwithstanding his
inadmissibility. In particular, I note that the Minister’s Delegate had before
her the same Exhibits P-1 and P-2 which had been before the officer and
myself. Justice Shore dismissed the application for
judicial review. He found that Mr. Lupsa had not demonstrated the existence of
an unreasonable error in the impugned decision before him, including the
assessment of the risks if he were to return to Romania today.
Conclusions
[27]
For the following
reasons, I am of the view that this application for judicial review must be
dismissed.
[28]
The
allegation that the officer violated section 167 of the IRPR is unfounded. On
the face of it, the officer’s decision is not based on the applicant’s lack of
credibility but on an analysis of the evidence in the record: the fact that he
had never faced charges of sedition, the fact that he had not been sought for
over two years, no evidence of any arrest and, finally, the low probative value
assigned to the new evidence. Nothing in this decision impugns Mr. Lupsa’s
credibility. Counsel for the applicant focused on the Personal Information Form
(PIF) filed before the Refugee Division in 1993. The events described therein
were before Officer Lajoie; during the first PRRA application, he took them
into consideration and deemed them to be inadequate. Mr. Lupsa’s counsel argued
before my colleague Justice Tremblay-Lamer that Officer Lavoie had violated
section 167, an allegation that was dismissed by the judge.
[29]
I reject
the allegation that the officer committed an error by not analyzing the
evidence pertaining to the events that transpired between 1981 and 1989. It was
not her job to do so; the evidence had already been reviewed by Officer Lavoie
and had been deemed to be inadequate; the decision was upheld by this Court.
The officer’s job was to assess the new allegations and facts in Mr. Lupsa’s
second PRRA application. The officer’s view was endorsed by Justice Beaudry. I
would add that the same evidence was reviewed by the Minister’s Delegate and by
Justice Shore. It is true that the
officer did not specifically mention the possible reopening of the
investigation into the death of General Nuta. On the whole, this omission does
not warrant the Court’s intervention because, upon reading the document, it
would not be Mr. Lupsa who would not be targeted, but rather members of the
armed forces from 1989.
[30]
Finally, I
cannot agree with the argument with regard to subsection 108(4). Justice Shore was faced with the same argument
in his decision. He determined that subsection 108(4) did not apply in that
case. I agree with what Justice Shore wrote at paragraphs 112
to 122 of his reasons.
[31]
Counsel
for the applicant proposed five questions for certification. I will allow none for
reasons raised by the Minister’s counsel, citing the Federal Court of Appeal in
Canada (Minister of Citizenship and Immigration) v. Liyanagamage, (1994)
176 N.R. 4. The questions proposed by the applicant do not transcend the
parties’ interests and do not raise any issues of general importance. Moreover,
questions 1 to 4 are of a factual nature and are related and restricted to the
facts of the case at bar. As for question 5, it has frequently been considered in
this Court’s jurisprudence.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed. No question is certified.
‘‘François Lemieux’’
____________________________
Judge
Certified true
translation
Sebastian Desbarats,
Translator
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