Date: 20100902
Docket: IMM-981-10
Citation: 2010 FC 869
Ottawa, Ontario, September 2,
2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
RODICA
ZMEU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application by Rodica Zmeu (the
Applicant) pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review
of a decision by the Refugee Protection Division of the
Immigration and Refugee Board (the Board), dated June 28, 2010, that the
Applicant is not a Convention refugee or a person in need of protection.
[2]
The Applicant is a citizen of Moldova. She fears persecution by an
ex-boyfriend who, she says, physically abused and harassed her.
[3]
The Board concluded that “[t]here’s no credible
evidence” that the Applicant’s ex-boyfriend’s threats and violence “ever
amounted to persecution.” While the Board did not question that the incidents
alleged by the Applicant occurred, it noted that before coming to Canada, “[s]he left Moldova on three
separate occasions and returned each time,” including from the United States. In its view, this “indicates
that a well-founded fear of persecution is lacking, and that such conduct is
inconsistent with such fear.”
[4]
Furthermore, the Applicant “failed to establish
with clear and convincing evidence that Moldovan authorities are either unable
or unwilling to protect her should she return there.” The only time she
approached the police for protection, they intervened. The Board considered a
letter from the Moldovan Office of Lawyers stating that under Moldovan law, a
person suffering from mental illness, such as the Applicant’s ex-boyfriend
cannot be prosecuted, but noted that no country could guarantee its citizens
perfect protection. In its opinion, the protection Moldovan authorities could
offer the Applicant would be adequate.
[5]
First, the Applicant submits that “the Board has
not explained at all” its conclusion that her ex-boyfriend’s behaviour toward
her did not amount to persecution.
[6]
In Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689 at 734, 103 D.L.R. (4th) 1, the Supreme Court
accepted a definition of “persecution” as a “sustained or systemic violation of basic human rights demonstrative of a failure
of state protection.” As I explained in Liang v. Canada (Minister of Citizenship and
Immigration), 2008 FC 450, at par. 19, “the determination of what constitutes persecution involves an analysis
of many factors, including persistence, seriousness, and the quality of the
alleged incidents.”
[7]
In my view, it is sufficiently clear from the
Board reasons that it did not consider the seriousness of the incidents
involving the Applicant’s ex-boyfriend to have been such that these amounted to
“persecution.” While the Board’s reasons are not perfect, they are transparent
and intelligible, and therefore adequate.
[8]
Second, the Applicant argues that the
Board erred in concluding that she did not fear persecution in Moldova since she thrice returned to that
country from trips abroad, including a lengthy stay in the United States. According to the Applicant,
“so long as the source of harm and fear is present and [she] fears for harm
[sic] (that is why she eventually left the country) it is not a reasonable
finding that return of the [A]pplicant to her country alone is an indication of
lack of fear.” Again, I am of the view that the Board could reasonably question the
Applicant’s credibility as to her subjective fear on the basis of the fact that
she returned to Moldova despite the presence there of her
alleged persecutor. Its findings are neither “perverse or capricious” nor made
“without regard to the evidence before it.”
[9]
Finally, the Applicant contends that the Board erred in finding
that the Moldovan state could protect her. According to her, the authorities
could not offer her a reasonable level of protection because, being unable to
keep her ex-boyfriend in detention, they lack the power to prevent him from
persecuting her.
[10]
In my view, the Board’s decision is not
unreasonable. In light of the fact that the police came to the Applicant’s
assistance the only time she sought their help, it was open to it to conclude
that state protection, while perhaps imperfect, would be reasonably
forthcoming. The Applicant suggests, in effect, that the only way in which Moldova could offer her adequate
protection would be to put her ex-boyfriend in indefinite detention. This is,
in my opinion, an untenable position. It is very unfortunate that the Applicant
might have to deal with an obsessive stalker, but the only evidence in the
record suggests that if he comes to actually threaten her, police are likely to
intervene.
[11]
For these reasons, the
application for judicial review of the decision is dismissed.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed.
“Danièle Tremblay-Lamer”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-981-10
STYLE
OF CAUSE: RODICA ZMEU
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September
2, 2010
REASONS FOR JUDGMENT
AND JUDGMENT: Tremblay-Lamer
J.
DATED: September
2, 2010
APPEARANCES:
Rezaur Rahman FOR
APPLICANT
Korinda McLaine FOR
RESPONDENT
SOLICITORS OF RECORD:
Rezaur Rahman Law Office FOR
APPLICANT
Ottawa, Ontario
Myles J. Kirvan FOR
RESPONDENT
Deputy Attorney General of Canada
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