Date: 20101208
Docket: IMM-1239-10
Citation: 2010 FC 1251
Ottawa, Ontario, December 8, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
GABRIEL BARBU and
DANIELA GEORGIANA BARBU
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of the decision of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board, dated 8 February 2010 (Decision), which refused the
applications of both the Male Applicant and the Female Applicant to be deemed persons
in need of protection under section 97 of the Act.
BACKGROUND
[2]
The
Male and Female Applicants are married citizens of Romania. They entered Canada as visitors on October
2006 and made a refugee claim the following spring, in April 2007. They allege
a risk to their lives or a risk of cruel and unusual punishment or torture if
they return to Romania.
[3]
The
Male Applicant owned a transport company in Bucharest. He and the Female Applicant were dating,
and she worked in the company, attending to the accounts and the bookkeeping. In
April 2004, the Male Applicant, who was having financial difficulties in his
company, borrowed 30,000 Euros from a loan shark named Vasile Sergiu Daniel
(“Sergiu”). The money, plus interest, was to be paid back in September of that
year. The Male Applicant was two days late with the payment. Consequently,
Sergiu charged him additional fees. That same month, the Male Applicant
reported Sergiu’s actions to the police. The next day, Sergiu and three other
men forced their way into the Male Applicant’s house, beat him and forced him
to agree to withdraw his police complaint.
[4]
Between
2004 and 2006, Sergiu extorted from the Male Applicant between 78,000 and
80,000 Euros, causing the Male Applicant to sell or lose his car, his apartment
and trucks used in his business. During each of the more than 20 different meetings
between the men, Sergiu slapped and threatened the Male Applicant.
[5]
The
Male and Female Applicant were married in June 2006. The day after the wedding,
Sergiu and his men came to the Female Applicant’s family home. They stole the
money given as wedding gifts. They threatened the Male Applicant, and they told
the family to advise the Male Applicant to do something if they did not want
their daughter dead. This was apparently the first time that the Female
Applicant had heard of the Male Applicant’s trouble with Sergiu. Sergiu was
arrested in Italy shortly thereafter for
an unrelated crime.
[6]
The
Applicants decided then that they would leave the country. They travelled to Bulgaria and Turkey, collecting
money owed to the business and eventually returning to Romania. Their visitors’ visas
were issued in October 2006, at which time they flew to Canada where, nearly six
months later, they made their refugee claims.
[7]
The
Applicants allege that, after their departure from Romania, Sergiu began harassing
the Male Applicant’s father to reveal the Applicants’ whereabouts. The father
reported the harassment to the police. In April 2007, the father was killed when
he lost control of his car and an accident ensued. The Applicants allege that the
brake lines of the vehicle had been cut, that Sergiu was responsible for the
death and that he and his men attended the funeral in order to seize the Male
Applicant if he presented himself.
[8]
The
Applicants appeared before the RPD on 9 December 2009 and 15 January 2010. They
were represented by counsel and an interpreter was present. The RPD rendered
its oral decision on 15 January 2010 and its written Decision on 8 February
2010. The RPD stated in its written Decision that the Male and Female
Applicants were not persons in need of protection under section 97 of the Act.
The RPD also found that the Applicants were not Convention refugees, although
they had not, in fact, applied for Convention refugee status. This is the
Decision under review.
DECISION UNDER REVIEW
[9]
The RPD
accepted that the evidence of the Applicants was true. It also found, however,
that neither Applicant faced a risk to life or a risk of cruel and unusual
punishment or torture upon return to Romania. In its determination, the RPD considered the
following four factors.
[10]
First,
the “primary incident” in which the Male Applicant was physically assaulted by
Sergiu occurred in September 2004, yet the Male Applicant continued to live in Romania for the next two years.
He was not significantly harmed, he did not flee and he did not make any claim
for his safety or protection.
[11]
Second,
Sergiu had numerous opportunities to kill the Male Applicant, but he availed
himself of none of them. Clearly, his interest was in extorting money from the
Male Applicant and not in killing him.
[12]
Third,
the RPD doubted the seriousness of the Male Applicant’s problems with Sergiu.
That the Female Applicant could have remained ignorant of the Male Applicant’s
problems until they were married, despite the fact that she had been dating him
since 2000 and was responsible for the accounting at the trucking business,
suggested to the RPD that the threat to their lives was “not a serious consideration”
and that the problems with Sergiu were not as grave as the Applicants
indicated.
[13]
Finally,
the Male Applicant’s evidence that he resolved to flee Romania only after the
post-wedding assault suggested to the RPD that his true reason for leaving was
“because he did not want to draw others into his problems with Sergiu” and not
because he feared for his life.
[14]
The RPD
rejected the death of the Male Applicant’s father as relevant to the
determination of the claim because the person responsible was never identified
and Sergiu was never implicated.
[15]
Having
failed to establish a risk to life or a risk of cruel or unusual punishment or
torture, neither the Male Applicant nor the Female Applicant could successfully
establish a valid refugee claim.
ISSUES
[16]
The
Applicants state the following issue:
Did the RPD err in
finding that the “primary incident … occurred in 2004” when, according to the
Male Applicant’s evidence, there were two major incidents, the second being
when he was beaten in June 2006?
STATUTORY PROVISIONS
[17]
The
following provision of the Act is applicable in these proceedings:
|
Person in
need of protection
97. (1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed
by the regulations as being in need of protection is also a person in need of
protection.
|
Personne
à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD OF REVIEW
[18]
The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 held that a standard of review analysis need not be conducted in
every instance. Instead, where the standard of review applicable to the
particular question before the court is well-settled by past jurisprudence, the
reviewing court may adopt that standard of review. Only where this search
proves fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[19]
The Applicant has brought an issue before the Court
concerning the RPD’s treatment of the evidence before it. In considering whether the RPD ignored
certain evidence or misunderstood the evidence, the appropriate standard is one
of reasonableness. See Dunsmuir, above, at
paragraphs 51 and 53.
[20]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph
47. Put another way, the Court should intervene only if the Decision was
unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
ARGUMENTS
The Applicants
[21]
The
Applicants argue that, although the Male Applicant was threatened and
physically assaulted by Sergiu more than 20 times, two incidents in particular stand
out: the initial assault in September 2004; and the final assault in June 2006
on the day following the wedding.
[22]
The
Applicants insist that it was the second incident that precipitated their
departure from Romania. It was not until he
got married and his wife became involved in the problem that the Male Applicant
thought of running away. The evidence concerning the second incident goes to a
determinative issue of the claim, namely the nature and severity of the risk to
life that the Applicants would face if they are returned to Romania and the threat they
face from the agent of persecution. However, in stating at paragraph 18 of the
Decision that “the primary incident … occurred in 2004,” the RPD overlooked the
significance of the second incident and thereby committed a reviewable error.
[23]
The
repercussions of this oversight are evident in the remainder of the Decision.
The RPD concluded that because the Male Applicant continued to meet with Sergiu
between 2004 and 2006 and suffered no serious harm as a result, then the threat
to their lives was “not a serious consideration.”
[24]
The
significance of the second incident was made clear in an exchange between the
Male Applicant and the RPD during the hearing, and the RPD erred by not
referring to it in the Decision.
The Respondent
[25]
The
Respondent argues that the RPD had the discretion to weigh the evidence before
issuing its Decision. See Aguebor v. Canada (Minister of Employment
and Immigration)
(1993), 160 N.R. 315 (F.C.A.). That the RPD chose not to refer to every piece
of evidence before it is not fatal to the Decision and provides no grounds for
intervention by the Court. In Akram v. Canada (Minister of
Citizenship and Immigration), 2004 FC 629 at paragraph 15, Justice Richard Mosley
stated that a Board is “assumed to have weighed and considered all evidence
before it, unless the contrary is shown.”
[26]
In
the instant case, the Applicants have simply taken issue with the RPD’s assessment
of how much weight to assign to a particular incident. They have not shown that
the evidence regarding the second incident was overlooked. Indeed, the RPD did
refer to the robbery and the threats of 4 June 2006 at paragraphs 8 and 18. Nonetheless,
it found that the Applicants had lived in Romania between September 2004 and June 2006, that the
Male Applicant had continued to meet with Sergiu and that, despite many
opportunities to do so, Sergiu had not seriously harmed either Applicant. The
Court has held that an applicant’s disagreement with how the RPD has assessed
the weight of the evidence is not a ground for judicial review. In Singh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1146, [2003]
F.C.J. No. 1451 at paragraph 11, Justice Judith Snider stated as follows:
Disagreement
with the manner in which the Board weighed the evidence is not a ground for
judicial review. Further, the Board is not obligated to accept every
explanation offered to it by the Applicant and is entitled to reject
explanations that it finds to be not credible based on inconsistencies,
contradictions or implausibilities ….
[27]
To
qualify as persons in need of protection under section 97 of the Act, the
Applicants had the burden of demonstrating that they personally face a risk to
life or a risk of cruel or unusual punishment or torture should they return to Romania. Having properly
considered the evidence, the RPD found that the Applicants failed to establish
their claims. The Respondent argues that the Decision is reasonable and,
therefore, should not be disturbed.
ANALYSIS
[28]
The Applicants say that the RPD failed to refer to the 2006 incident
which precipitated their departure from Romania, and stated incorrectly that
there was only one principal incident which occurred in 2004.
[29]
The Applicants are relying upon terminology rather than substance and
they are reading that terminology out of context.
[30]
To begin with, the 2006 incident is clearly referred to, believed, and
taken into account in the Decision. This is clear from paragraphs 8 and 18.
[31]
When the RPD uses the word “primary” in subparagraph 18(1), the 2004
incident is primary only in the sense that it involved “physical assault or
physical danger,” or in the sense that this was the “first” serious incident.
[32]
The 2006 incident, and its significance, is again referred to and
discussed in subparagraph 18(3) of the Decision. The evidence was that this
incident involved robbery and threats.
[33]
The Applicants have pointed the Court to pages 402 and 403 of the
certified transcript where the following exchange occurs:
a.
If I count every time that he was slapping me, slapping my face, when I
was bringing him money and threatening me to bring him more money and so on, I
believe that will be more than 20 times in 2005/2006. But the major one, like
it happened in September 2004, happened only once when I got married in June
2006.
Q.
So the major beatings were only in September 2004 and June 2006?
A. When I say major – – when I say major events, I mean events
when they break and entry, they practically burst into our house. The first
time it was into my house and the second time was into my wife’s house.
So when the Male Applicant talks
about “major events,” he does not mean that he was beaten in 2006 as well as in
2004; in 2006, he means “events when they break and entry, they practically
burst into our house.” This is confirmed in the Applicants’ PIF narrative at
page 110 of the certified record. There was break and entry and threats in 2006,
but no beating.
[34]
The Applicants’ narrative is that it was the 2006 incident which precipitated
their departure from Romania. But there is nothing in the Decision to suggest
that the RPD did not appreciate this (the full narrative is recited and
believed), or that the RPD’s reading of this incident was unreasonable or did
not conform with the evidence before it.
[35]
The Male Applicant had been beaten (as opposed to slaps) by Sergiu only in
2004 after he complained to the police and Sergiu wanted him to withdraw the
complaint. Apart from this primary incident of physical abuse, the evidence was
that Sergiu used slaps and threats and was more interested in extorting money
than in causing physical harm. This is precisely what the RPD found. It is
possible to disagree with this finding but I cannot say that the Decision lacks
justification, transparency or intelligibility, and I cannot say that it falls
outside of the range of possible, acceptable outcomes which are defensible in
respect of the facts and law. See Dunsmuir, above, at paragraph 47.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1.
The
application for judicial review is dismissed.
2.
There
is no question for certification.
“James Russell”
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