Date: 20060615

Docket: IMM-2515-06

Citation: 2006 FC 768 

Ottawa, Ontario, June 15, 2006

Present: The Honourable Mr. Justice Lemieux 

BETWEEN:

GHEORCHE CALIN LUPSA

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

[1]               I will briefly explain why on May 23, 2006, I stayed the removal to Romania, scheduled for that very day, of the applicant Gheorche Calin Lupsa, a citizen of that country.

[2]               His motion to stay is attached to an application for leave and for judicial review of the decision, dated February 10, 2006, by Charles Lajoie, an officer responsible for the pre-removal risk assessment (PRRA officer). The substance of the PRRA officer’s decision is as follows:

[translation]

The applicant has not filed any document suggesting that a charge was brought against him under the Romanian criminal code for sedition. I do not have an indictment police report or arrest warrant.  I note that the applicant has been in Canada for more than 13 years and that in that time he has not managed to get the documents confirming the charges pending against him. He did not provide any information regarding the reasons preventing him from obtaining the evidence of that charge. I note that the facts raised in the refugee claim, dating from 1992, do not mention any such charge. The only one that he mentions in the PIF is the one for driving while intoxicated and the applicant did not file anything establishing that allegation either.  Mr. Lupsa explains that he had been hospitalized in December 1990 and January 1991, following a detention during which he was allegedly beaten. He states that he reported it to the police the following February. The applicant does not have any evidence establishing that these events occurred. Finally, the applicant has not filed any evidence corroborating the other facts raised in his PIF.

In this case, the applicant has not established, through trustworthy and objective evidence, that a charge under the Romanian criminal is pending against him. Since the fears of the judicial process as well as the risk of detention arise from the existence of this charge and considering that this fact was not established, I am not persuaded that the applicant met his burden of establishing that there would be a personal risk if he were to return to Romania. For all of these reasons, the application must be dismissed.

[Emphasis added.]

[3]               Shortly before the hearing on the stay, the Court received some documents from the applicant’s recently hired counsel. One of those documents was a photocopy of a summons from the police of the municipality of Alba Iulia regarding an offence under section 155 of the penal code for sedition, punishable by 15 to 25 years of imprisonment.

[4]               The other document that I refer to is a letter from Mr. Calin’s mother, sent to him on November 11, 1994. His mother wrote that the police were still looking for him.

[5]               The applicant’s counsel, Ms. Milos, told the Court that she discovered these documents a very short time ago in the applicant’s record before the Convention Refugee Determination Division (CRDD) in 1993, a decision which was set aside by the Federal Court in 1994. In 1996, the CRDD determined that the applicant had abandoned his refugee claim.

[6]               The respondent’s counsel was herself surprised by this newly discovered evidence. She did not have the time to further investigate the origin of the two documents to determine whether they were in the PRRA officer’s record or in the records of the CRDD. She argues that these documents are new evidence which must be excluded from the record.

[7]               Considering the significance of these documents and the uncertainty of their origin, the applicant has in my opinion established the existence of a serious question, i.e. whether the PRRA officer disregarded evidence. The enormous consequences for the applicant if he is arrested on returning to Romania warrants a finding of irreparable harm.  It follows that the balance of convenience favours the applicant.

“François Lemieux”

Certified true translation

Kelley A. Harvey, BCL, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-2515-06

STYLE OF CAUSE:                          GHEORCHE CALIN LUPSA v.

                                                            MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Ottawa, Ontario

DATE OF HEARING:                      May 23, 2006

REASONS FOR ORDER:               Lemieux J.

DATE OF REASONS:                      June 15, 2006

APPEARANCES:

SOLICITORS OF RECORD: