Date: 20080214
Docket: IMM-553-07
Citation: 2008 FC 191
Ottawa, Ontario, February 14,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ELENA
MARYLENE BOTEZATU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant’s refugee claim failed because the Refugee Protection Division (RPD)
found that there was no objective basis for her fear that she would not receive
a fair trial in Romania, that her treatment in prison would be cruel
for which she required protection and that she would be subject to reprisals
from her former employer. The Applicant challenges the legal test used and the
reasonableness of the findings.
II. BACKGROUND
[2]
Ms.
Botezatu, then a 61-year old, is a Romanian citizen. She was implicated in a
political and legal scandal involving the sale of oil products and the tax
investigation related to the sale price of those products.
[3]
Shortly
after leaving Romania in April
2002 to visit a friend in the United States, Romanian authorities
issued subpoenas for her, and she was charged with “abuse of duty” and
“incitement to falsify documents”. A warrant for her “preventive arrestment”
was also issued. The Applicant says that she first learned of these legal steps
in July 2002 when she came to Canada to visit another friend.
[4]
Since
that time, the Applicant has fought the Romanian judicial proceedings from
afar. She applied for protection in Canada in June 2003,
approximately one year after learning of these proceedings.
III. ANALYSIS
[5]
The
standards of review at issue here are straightforward (see Chaves v. Canada
(Minister of Citizenship and Immigration), 2005 FC 193 and Resulaj v. Canada (Minister of
Citizenship and Immigration), 2006 FC 269). On the legal test applicable,
it is correctness. As to findings of fact, for purposes of this case, I will
apply that of patent unreasonableness. I do so bearing in mind Justice Major’s
caveat in Voice Construction Ltd. v. Construction & General Workers’
Union, Local 92, [2004] 1 S.C.R. 609, that the patent unreasonableness
standard should be a rarity.
[6]
The
Applicant has attempted to weave an argument that despite the RPD stating the
test to be “a serious possibility of harm”, the RPD mixed up the test with that
of “balance of probabilities” throughout the balance of the reasons.
[7]
Having
read the reasons carefully, I can find no such error. The RPD simply
acknowledged that the burden of proof of the “serious possibility” must be
established on the balance of probabilities. That is a correct, although
somewhat awkward, statement of the law.
[8]
I
am more troubled by the RPD’s consideration of Romanian prison conditions and
its assessment that the Applicant would not be subject to torture. As the trier
of fact, the RPD is entitled to significant deference. In this case, the DOS
Reports show that prison conditions fail to meet international standards. The
fact that Romania was entering
the European Union, subject to certain conditions of reform, might be relevant
but was not considered as such. The RPD’s conclusions about the physical and
operating conditions of prisons might not, in and of itself, be patent
unreasonableness (although it does not stand up to a probing examination) but
linked as it was to the possibility of torture in prison, the conclusion is
patently unreasonable.
[9]
As
to whether the Applicant was subject to a serious possibility of risk, the RPD
failed to adequately consider that the Applicant’s co-accused in the scandal suffered
torture and to explain why treatment of a person in a like situation is not a
strong indicator of the risk the Applicant would face.
[10]
Therefore,
this judicial review is granted, the RPD’s decision quashed and the matter
remitted to the RPD for a new determination by a differently constituted panel.
[11]
On
the basis of these Reasons, the Court does not see that any question of general
importance arises. No question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the RPD’s decision is quashed and
the matter is to be remitted to the RPD for a new determination by a
differently constituted panel.
“Michael
L. Phelan”
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