Date: 20070213
Docket: IMM-407-07
Citation: 2007 FC 161
Montréal, Quebec, the 13th day of February 2007
PRESENT:
THE HONOURABLE MR. JUSTICE DE MONTIGNY
BETWEEN:
DANIEL
NEAGU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant, Mr. Daniel Neagu, is a citizen of Romania and is 24 years of age. He
is seeking from this Court an order staying his removal, which is scheduled for
February 23, 2007.
[2]
The
applicant was smuggled into Canada on September 9, 2003. He made his claim for
refugee protection on October 19 of that year, alleging a fear of persecution
in his country because he is a Jehovah’s Witness. In this regard, he related
how he had been assaulted on January 15, 2002, because of his religious
activities. He also submitted that he had objected to doing military service
because of his religious beliefs, and that he feared sanctions following his
refusal to obey the recruitment orders he received.
[3]
On March
8, 2004, the Refugee Protection Division (RPD) rejected the applicant’s claim
for refugee protection on the grounds that the alleged incidents constituted
discrimination and not persecution, and that the assault that he had suffered
was an isolated case. The RPD also held against Mr. Neagu the fact that had not
claimed refugee protection in Italy, where he had stayed on two occasions in
order to evade military service. Finally, the RPD noted that military service
in Romania arises out of a law of general application and that there was an
alternative service available to him. In this respect, the RPD noted that the
applicant’s credibility was undermined by the fact that he had not mentioned
that he had made such a request in his personal information form, in addition
to erroneously mentioning that he would be sentenced to seven years in prison
for not reporting for military service.
[4]
On June
24, this Court dismissed the application for leave and for judicial review
filed by Mr. Neagu against the RPD.
[5]
In
November 2006, the applicant filed an application for a pre-removal risk
assessment (PRRA), alleging in essence the same fears as those pleaded before
the RPD. As fresh evidence, the applicant submitted a new recruitment order
dated January 6, 2006, a psychological report and documentation on general
conditions in Romania.
[6]
On
December 27, 2006, after reviewing the documents submitted and the objective
documentary evidence on the situation in Romania, the PRRA officer came to the
same conclusions as the PRRA officer, namely: (1) the general treatment
accorded to Jehovah’s Witnesses in Romania amounted at most to discrimination,
and not to persecution; (2) the applicant had not rebutted the presumption that
the Romanian authorities were able to protect him; (3) the stress and
psychological consequences arising from the applicant’s removal to his country
did not amount to a risk covered by sections 96 and 97 of the Immigration
and Refugee Protection Act, but must instead be taken into consideration in
reviewing his application for exemption on humanitarian and compassionate
grounds; (4) military service had been abolished for some months in Romania
and, in any case, Mr. Neagu would not be forced to take up arms because there
was an alternative service available to him as an adherent of an officially
recognized religion; and (5) the sanctions provided for in the Penal Code for a
refusal to report for military service did not constitute persecution but arose
out of a law of general application.
[7]
On January
30, 2007, the applicant filed an application for leave against this decision of
the PRRA officer, to which he attached this motion to stay his removal.
[8]
To obtain
a stay of removal, the applicant must raise a serious issue, establish that he
would suffer irreparable harm if no order were granted, and convince the Court
that the balance of convenience favours the order (Toth v. Canada
(Minister of Employment and Immigration), (1988) 86 N.R. 302 (F.C.A.)).
After reviewing the file and hearing the parties, I find that the motion to
stay his removal must be dismissed.
[9]
The
officer’s notes supporting his decision clearly show that he took into account
all the evidence adduced by the applicant in support of his PRRA application as
well as the recent objective situation in Romania. The role of this Court is
not to re-weigh the evidence and draw its own conclusions, unless the PRRA
officer’s decision is patently unreasonable and bears no relation to the
evidence adduced (Tharumarasah v. Canada (M.C.I.), [2004]
F.C.J. No. 258 (F.C.); Figurado v. Canada (Solicitor General),
[2004] F.C.J. No. 296 (F.C.)).
[10]
In
particular, it was reasonable for the PRRA officer to find that the general
treatment accorded to Jehovah’s Witnesses does not amount to persecution, which
requires repeated threats and systematic infliction of personal injury. As Mr.
Justice Reed in Weiss v. Canada (M.C.I.), [2000] F.C.J.
No. 1089 (F.C.) stated at paragraph 17, “. . . while
the dividing line between persecution and discrimination is difficult to
establish, it remains, for the Board to draw the conclusion in a particular
factual context by proceeding with a careful analysis of the evidence adduced
and a proper balancing of the various elements contained therein, and the
intervention of this Court is not warranted unless the conclusion reached
appears to be capricious or unreasonable.”
[11]
The
applicant’s counsel tried to argue that Mr. Neagu could not count on state
protection, given the lack of willingness on the part of the police to
prosecute those who assault Jehovah’s Witnesses. In his view, this attitude
demonstrates the state’s complicity in the repression of the applicant’s
coreligionists. However, the PRRA officer carefully weighed the documentary
evidence and the violent incidents reported therein, and ultimately found that
these were isolated incidents. Given the measures taken by the Romanian
government to protect the rights of Jehovah’s Witnesses and other minorities,
the officer refused to find that the authorities would do little in the case of
a complaint or an offence solely because it involved a member of these groups.
Even if this finding is debatable, it does not seem to this Court to be
unreasonable in view of the evidence adduced.
[12]
Consequently,
the applicant has not discharged the burden of demonstrating the existence of a
serious issue. This in itself would be sufficient to end the analysis required
under Toth. But there is more.
[13]
The
applicant has not demonstrated to this Court that he would suffer irreparable
harm if he were removed to his country. In his written representations, the
applicant mentioned the psychological trauma he would suffer if he were to
return to his country, and he also mentioned the criminal prosecution he could
face. These consequences are clearly not of the type that may be considered in
determining whether his life and safety would be in jeopardy (see Kerrutt
v. Canada (M.E.I.), [1992] F.C.J. No. 237 (F.C.); Calderon
v. Canada (M.C.I.), [1995] F.C.J. No. 393 (F.C.); Ram v. Canada
(M.C.I.), [1996] F.C.J. No. 883 (F.C.)).
[14]
During the
hearing, the applicant’s counsel also mentioned the risk of assault that his
client could face if he were to return to Romania. However, the RPD and the
PRRA officer both dismissed this claim. Given that this Court finds that the
applicant has not raised a serious issue regarding the latter decision, I have
no choice but to dismiss the claims of irreparable harm resulting from a risk
of assault.
[15]
Under
these circumstances, it goes without saying that the balance of convenience
clearly favours the Minister.
[16]
For these
reasons, the motion to stay removal is dismissed.
[17]
Given the
governmental reorganization implemented under the Public Service
Rearrangement and Transfer of Duties Act (R.S.C., 1985, c. P-34), as well
as the Department of Public Safety and Emergency Preparedness Act (S.C.
2005, c. 10) and orders in council P.C. 2003-2059, P.C. 2003-2061, P.C.
2003-2063, P.C. 2004-1155 and P.C. 2005-0482, the Minister of Public Safety and
Emergency Preparedness should be added as a respondent.
ORDER
THE COURT ORDERS that
-
The motion
to stay removal be dismissed;
-
The
Minister of Public Safety and Emergency Preparedness be added as a respondent.
“Yves de Montigny”
Certified
true translation
Susan
Deichert, LLB
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