Date: 20110721
Docket: IMM-7614-10
Citation: 2011 FC 917
Toronto, Ontario,
July 21, 2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
|
|
ELENA MARYLENE BOTEZATU and VALERIU
BOTEZATU
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of a Member of the
Immigration and Refugee Board dated December 2, 2010, wherein it was determined
that the Applicants would be excluded from refugee protection because the Board
determined that there were serious reasons to consider that the Applicants have
committed serious non-political crimes in their country of origin, Romania. For
the reasons that follow, I will allow this application and return the matter
for reconsideration by a different Member.
[2]
The
Applicants are husband and wife; both citizens of Romania. The wife
came to Canada in 2002 and
made a claim for refugee protection in May 2003. Her husband came to Canada in June 2008
and made a claim for refugee protection within a few days. Their claim was
first heard by a Member of the Board. The Board rejected the Applicants’ claim.
The Federal Court, Phelan J., sent the matter back for a re-hearing by a
different Member. The substance of his reasons (2008 FC 191) are set out in
paragraphs 8 and 9 as follows:
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.
[3]
The
matter was re-heard by a different Member who took into consideration not only
the record of the previous hearing, but new materials submitted and new
examinations of the Applicants before the Member. The Member concluded in her
reasons:
[62] Accordingly, the panel finds
that the government has met its burden44 of showing that both the
female claimant and the male claimant fall within the purview of Article 1F(b).
I find that they are both excluded from the Convention refugee definition and
are not Convention refugees or persons in need of protection.
Final Disposition
[63] After considering all
the evidence, I find there are serious reasons to consider that Elena Marylene
Botezatu and Valeriu Botezatu have committed a serious non-political crime in Romania. Therefore, they are excluded
from refugee protection.
[4]
The
Applicants’ Counsel has raised several issues with respect to the reasons and
decision of the Member. I believe that this application can be dealt with on
the bases that follow.
[5]
It
is common ground between the parties that the Applicants have never been
convicted of any crime in Romania. It is also common
ground that the first charges laid were annulled through the Romanian
Court
procedures and that there is no current warrant for arrest against either
Applicant. Further, it is common ground that new charges were laid against the
Applicants, which charges are currently being contested in the Romanian Courts.
The Applicants allege that these charges are trumped up and are politically
motivated. There are two letters in the tribunal record from the Applicants’
Romanian lawyer providing some history as to the charges. The lawyer’s letter
of May 11, 2009 begins and ends as follows:
1. As counsel of defense, in
agreement with my previous letters, I shall briefly present the evolution
and significant aspects of the criminal trial filed by the Romanian
authorities against Mrs. Botezatu Elena Marylene (BEM). The trial is formed of
two separate parts carried out simultaneously, the preventive arrest warrant
(PAW) and the proper charge. I will show you how and why, under
an apparent legality,
a.
PAW
was issued and maintained in a completely illegal manner since 25/07/02 up to
present [11, 12, 13],
b.
the
prosecution is a frame-up, [14- 25],
c.
BEM
was discriminated, [26],
d.
the
trial was not and shall not be fair [2-27].
I will analyze and argue on the basis of
the documents in the case trial and the legal provisions.
. . .
If we look back at everything that
happened to BEM we see an example of “applied justice” with all the
aforementioned ingredients. Although she is innocent, if she returns to the
country she may be (very probably) preventively arrested up to 180 days, during
the trial and then held in prison for years at the end of the trial, when there
are high chances that she be convicted, as a natural continuation of
everything that happened to her up to the present, continuously, for 7 years.
[6]
Respondent’s
Counsel at the hearing attempted to dismiss these letters, including the above,
on the basis that they were simply those of a lawyer advocating on behalf of a
client. Two points must be made in this regard. First, the Respondent can point
to nothing in the tribunal record, except the charges themselves, to the
contrary. Second, and most telling, Romania has not requested that
either Applicant be extradited to Romania; nor does the Romanian
government appear to be pursuing the current charges with any vigour.
[7]
The
last portion of the letter above-quoted must be particularly noted. It says
that the female Applicant would most probably be arrested were she to return to
Romania. There is no
evidence to the contrary. Justice Phelan’s reasons raising concern about the
Romanian prison conditions must be remembered. He directed that the Refugee
Protection Division consider this matter.
[8]
Against
this background, the Member’s reasoning will be examined.
[9]
The
Member’s reasons indicate that she was under the mistaken belief that the
Applicants had been convicted in Romania. This mistake is
recited in at least two paragraphs of her reasons. A third paragraph of her
reasons suggests that she was in some way confused as to the matter. Respondent’s
Counsel referred to these errors as “infelicitous wording”. I repeat paragraphs
36 and 59 of the Member’s reasons where she states that the female Applicant
has been convicted of a crime in Romania, and paragraph 45, which suggests that
she had only been charged with a crime in Romania.
[36] Regarding the standard of proof,
the Court has found that “serious reasons for considering”, which is a standard
of proof that applies to questions of fact, rather than law,19is a
lesser standard than that of a balance of probabilities.20 To meet
this standard, there need not be evidence that the claimant has been charged,
convicted,21 or criminally prosecuted.22 In the
circumstances of this case, the claimant has been charged and convicted in
absentia. Respecting particularly Article 1F(b), the claimant has been charged
and convicted in absentia. Respecting particularly Article 1F(b), the UNHCR
Handbook,23 which has been considered by the Supreme Court of Canada to be a persuasive authority,24
provides that Article 1F(b) is intended:
…to protect the community of a receiving
country from the danger of admitting a refugee who has committed a serious
common crime. It also seeks to render due justice to a refugee who has committed
a common crime (or crimes) of a less serious nature or has committed a
political offence.
. . .
[59] The female claimant has been in Canada since 2002. The onus is on
the Minister to show why the claimant should be excluded from refugee
protection. And, the onus is on the claimant to demonstrate that she was framed
for the oil scam and was not treated fairly by the court system. The male
claimant was asked what efforts they had made to overturn the allegedly false
convictions. The reforms outlined above were pointed out by the Tribunal
Officer. The documentary evidence referred to above does not indicate that
there are any timelines within which complaints about the judicial process must
be made. I find that the claimants have not satisfied the onus on them, to show
that they have made whatever efforts are possible, to prove that the court
proceedings, thus far, have been unfair, and that Romania has failed to follow due
process.
. . .
[45] The “serious non-political
crime” in question has been outlined above. I agree with Minister’s Counsel’s
submission that the female claimant wilfully participated in a crime. There is
no indication that the charges against the female claimant have been lifted.30
There is no outstanding arrest warrant against the female claimant. She
further agreed that the amount in question (at today’s rates) converts to more
than $2,000,000 Canadian. The fact that the female claimant says the charges
against her were manufactured and that she would not be given a fair trial does
not change the fact that she was and is still charged with a crime in Romania.
[10]
Counsel
agree that, in considering exclusion under Article 1F(b) of the Convention, it
is not necessary that there be a conviction in respect of the alleged crimes.
It is agreed that a range of considerations may come into play and that the
standard to be applied is that of more than a suspicion, but less than the
balance of probabilities. However, the matter must also be considered against
the background of the legal system as it exists in the country in which the
crimes are alleged to have occurred. Justice Gauthier of this Court recently
reviewed this matter in Pineda v Canada (Minister of
Citizenship and Immigration), 2010 FC 454 at paragraphs 27 to 33:
27 As
mentioned, parties to the Convention chose a fairly low evidentiary threshold
to determine if a refugee claimant has committed a serious non-political crime
before seeking protection in the country of refuge. Parliament has also given
the RPD a lot of freedom to receive any evidence it considers credible and
trustworthy [subsections 170(g) and (h) of the Act]. That said, the need for
"serious grounds" is protection against arbitrary and capricious
action especially in light of the dire consequences resulting from an exclusion
pursuant to Article 1F(b) of the Convention. For this standard to be
meaningful, it requires a proper and objective assessment of the context as
well as all the evidence presented by the refugee claimant. Obviously, the RPD
must be particularly cautious when charges led have been dismissed by a
competent court in accordance with the rule of law.
28 In
Legault v. Canada (Secretary of State) (1997), 42 Imm. L.R. (2d) 192, 219 N.R. 376 (FCA) and Xie v. Canada (Minister of Citizenship and Immigration), 2004 FCA 250, [2005] 1 F.C.R. 304, the Federal Court
of Appeal made it clear that the RPD can, in a proper context, rely upon an
indictment and an arrest warrant to conclude that there are reasonable grounds
to conclude that a claimant has committed serious crime outside of Canada.
29 This
is based on the premise that in a system where the rule of law prevails, the
RPD can reasonably infer that there were reasonable and probable grounds for
the police or the judicial investigative system to issue a warrant or lay a
charge.
30 Naturally,
for such premise to apply, the RPD must first be satisfied that the issuing
authority does respect the rule of law, that is, for example, that it is not
dealing with a country known for the filing of false charges as a means of
harassment or intimidation.
31 But,
by the same token, it also means that the value of the charges laid in a
country like the United States is greatly diminished when such charges are dismissed. In
fact, I would think that in such a case, the dismissal of the charges is prima facie evidence that those crimes were not committed by the
refugee claimant and that the Minister cannot simply rely on the laying of
charges to meet his burden of proof. The Minister must either bring credible and
trustworthy evidence of the commission of the crime per se or show that in the particular circumstances of the case,
the dismissal should not be conclusive because it does not affect the basic
foundation on which the charges were laid. Again, for example, this could be
achieved by establishing that crucial evidence on the basis of which the
charges were laid was excluded for a reason that does not bind the RPD and does
not totally destroy its probative value.
32 In
the present case, it is evident that the main evidence (if not the only one)
available to those who laid the charges and on which their reasonable beliefs
were based, was the statement of the alleged victim. There is no evidence that
there was anything else in the investigative file. The policeman who
interviewed the complainant specifically noted that there were no visible marks
or injuries and that there was no "rape kit". No examinations or
tests were made. Thus, the recanting of the complainant's story destroyed the
very foundation of the beliefs on which the charges were originally laid.
33 This
means that the RPD had to be particularly careful in the way it treated the
charges and it had to deal thoroughly with the retraction. It is exactly in
that respect that I consider the decision under review to be lacking.
[11]
In
the present case, the Member made at least three errors in considering Article
1F(b). The first, as already discussed, was her apparent confusion or belief
that there had been a conviction in Romania. While it is agreed
that a conviction is not determinative, it is a strongly influential factor and
may well have tipped the scale in this case.
[12]
The
second error was the Member’s refusal to consider that the Minister had not led
any evidence to substantiate the new changes. She said at paragraph 46 of her
reasons:
Counsel further submitted that the
Minister has not provided any new or additional evidence to substantiate the
charges currently against the female claimant. In my opinion, this is not
necessary, since the claimant has admitted that the charges against her in Romania are still outstanding.
[13]
I
asked both Counsel if they could find anything in the tribunal record
respecting an admission as to the charges. All that could be found is the
following passage in a letter from Applicants’ Counsel to the Board dated June
2, 2010:
If this information can be verified, it
may have important implications for the case. While there is now apparently no
current, outstanding warrant for her arrest, her charges still remain outstanding.
And it is unclear at this time what the actual implications of the annulment
will be. In particular, it is possible that the Romanian authorities will
initiate a new warrant, or appeal the decision to have it re-instated as done
previously. A previous warrant which had been annulled by the Brasov Law Court (see Exhibit R-3 (Court
Record), Vol. 8, pages 1596-1598, Vol. 11, pages 2017-2043) was subsequently
re-instated by the Brasov Court of Appeal (see Ex. R-3, Vol. 11 and 12, pages
2192-2211, esp. page 2210 bottom).
[14]
While
this is an admission that certain charges are outstanding, it in no way
relieves the Member from considering and weighing all the evidence, including a
consideration as to lack of evidence as to the nature and validity of such charges.
There is considerable evidence from the Applicants’ Romanian lawyer and others,
including a statement from one Mihai Florin, who appears to be implicated in
the matters in issue, in which he recants earlier statements he made and
absolves the Applicants of any complicity. All of this requires careful
examination, which simply wasn’t done.
[15]
The
third error is that the Member did not do that which Justice Phelan
specifically asked to be done; namely, an examination of the conditions under
which at least the female Applicant would find herself if she were to be
imprisoned in Romania. The Member declined to do so, on the basis that there
was no outstanding warrant for arrest. She wrote at paragraph 54 of her
reasons:
[54] It appears the main reason this
case was returned for another hearing was that there was insufficient
examination of Romanian prison conditions and whether or not the female
applicant would be subject to torture, if she were imprisoned. Mr. Justice
Phelan39 found that the previous Board member made a patently
unreasonable finding about the possibility of torture in prison. Since there is
no longer an arrest warrant out against the claimant, I decline to analyse this
issue.
[16]
In
so doing, the Member entirely overlooked the evidence of the Applicants’
lawyer, as previously quoted, that at least the female Applicant would most
probably be arrested if she returned to Romania. There is no
evidence to the contrary.
[17]
In
the written material, and in oral argument, there was much said about the nature
of the dealings in which the Applicants are said to be implicated and their
degree of complicity, if at all. These are complex matters and may well have
been distracting. While these matters need careful examination, it appears that
the Member overlooked or failed to consider much of the evidence submitted by
the Applicants. In view of the fact that this matter is to be returned for
reconsideration, a fresh and thorough examination should be made as to these
matters.
[18]
Accordingly,
the application for judicial review will be allowed, and the matter is returned
to the Board for re-determination by a different Member. No Counsel requested
certification and I find no reason to do so, nor any special reasons to award
costs.
JUDGMENT
FOR THE
REASONS PROVIDED;
THIS COURT’S JUDGMENT
is that:
1.
The
application is allowed;
2.
The
matter is returned for re-determination by a different Member;
3.
No
certification is made; and
4.
No
Order as to costs.
"Roger
T. Hughes"
Email this Content