Date: 20080220
Docket: IMM-2938-07
Citation: 2008 FC 231
Toronto, Ontario, February 20,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
MONICA
STREANGA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant Monica Streanga is an adult citizen of Romania. She
arrived in Canada in January
1999 and made a refugee claim which later was declared to have been abandoned.
The Applicant alleges that this was due to problems that she was experiencing
with an immigration consultant. Subsequently, the Applicant submitted a
pre-removal risk assessment (PRRA) application in January 2007 and, with
further evidence, a second application was filed on April 11, 2007. A decision
against the Applicant was given by the PRRA officer by letter dated July 9,
2007. it is this decision that is under review.
[2]
For
the reasons that follow, I have determined that the Application is allowed.
[3]
There
are unusual circumstances in this case in that the Applicant sought and
obtained from this court an Order staying her removal from Canada pending this
review. Justice Shore in giving that Order gave extensive Reasons in which he
criticized the decision of the PRRA officer and the officer’s assessment as to
the risk of harm and state protection available if the Applicant were to be
deported to Romania (Streanga v. Canada (MCI), 2007 FC 792). Justice Shore is an
experienced judge in this area of the law and his decisions, even if given in
an interlocutory matter, are to be given respect particularly where the
decision arises from the very circumstances now before the Court.
[4]
Ms.
Streanga’s life history is sad. She grew up in a small city in Romania as the
daughter of a Hungarian mother and thus identified as Hungarian or foreigner in
Romania. She had a
limited high school education and was raped by a gang of thugs while pursuing
that education. She and a girlfriend were lured by unscrupulous persons to
work just over the border in Hungary in what they thought
would be waitress jobs. Instead, they were placed in an exotic club to work as
dancers and prostitutes. There was little realistic prospect of escape except
back to the Romanian city where she had been molested and preyed upon in the
first place. Given this background it is not surprising that the Applicant has
had many personal difficulties to cope with.
[5]
It
appears that the Romanian police did apprehend the men who had attacked the
Applicant. They were convicted and sentenced to imprisonment. They are now out
of prison and at large in Romania. The evidence is that
persons of this kind endeavour to recapture their former victims and seek to
traffic them again or to punish them.
[6]
I
repeat and adopt the findings of Justice Shore 2007 FC 792 supra, as to
the failings of the analysis conducted by the PRRA officer. He found at
paragraphs 20 to 31:
[20]
In reasoning that since the Romanian state had
prosecuted the men who had trafficked her in the past, this would mean that the
Applicant would be able to access state protection “as she did previously”, the
PRRA Officer misapprehends that even though her traffickers were eventually
prosecuted and spent some time in jail, that she would not be at additional
risk now from her traffickers, in that they would want to seek retribution
against her for her role in their imprisonment. The PRRA Officer does not
analyze this aspect of her fear in considering whether she would face a risk to
her life, or risk of cruel and unusual treatment or punishment.
[21]
It is important to note that the PRRA Officer
made no credibility findings concerning the Applicant’s affidavit or the new
evidence.
[22]
The evidence before the PRRA Officer showed
that other Romanian women who have escaped their traffickers are often
recaptured by them when they seek refuge in women’s shelters. The Applicant has
attested that she fears her former traffickers will indeed find and put her at
serious risk. (Motion Record, pages 6, 18 and 141)
[23]
No basis in the evidence exists to assume the
Romanian police have developed sufficient capability and expertise to make a
credible, earnest attempt to arrive in time to protect a person, such as the
Applicant, from her traffickers before she is subjected to harm. (Garcia,
supra)
[24]
The PRRA Officer has erred in failing to
recognize that while the Romanian state has made some commendable efforts in
its attempt to stem human trafficking, and enacted laws to prosecute
traffickers, the documentary evidence treating the scale of trafficking in
women and children in Romania indicates that sample prison terms, in and of
themselves, simply, are not effectively addressing the problem and protecting
women in the Applicant’s position.
[25]
When one considers the ratio of traffickers
convicted—146—to the number of identified trafficking victims of 2, 250, this
constitutes a small proportion. This figure of trafficking victims is likely
much lower than in reality, as it comprises only the victims that have been
identified and counted by official statistics. Given that trafficking
involves degradation and sexually based offences, the actual number of victims
is much higher, with many women not reporting their abuse and ordeals to the
police. (Motion Record, pages 131-132, 169 and 171)
[26]
The Officer fails to provide any analysis of
the issue of corruption in the police force, identified as rampant in several
of the sources, and how this would effect the ability of the Applicant to
receive on-the-ground protection, at the local level, from the individuals she
fears. The DOS Report cites police corruption as being a major obstacle
in effectively protecting women in the Applicant’s position. The DOS
Report states: “Corruption in the police, particularly local forces,
contributed to trafficking. There were frequent allegations that border
police and customs agency officials accepted bribes to ignore cases of
trafficking.”
[27]
The Officer mentions this noted serious
deficiency, but then fails to provide any reasoning as to how it applies to his
state protection finding. In this sense, in addition to not analyzing
this evidence, the Officer’s reasons are also inadequate.
[28]
Amnesty International concludes that the law
against trafficking in Romania has not led to any
noticeable improvement in the serious problem of human trafficking. In
reported cases, law enforcement officers failed to take effective action to
protect women. Other sources note the endemic problem looms large.
Although prosecutions are taking place, these do not include the “coordinators
of the criminal networks”. (Motion Record, pages 82, 94 and 154)
[29]
The Officer does not address this
evidence. Instead, the Officer refers to only one documentary source in
his reasons, the DOS Report for Romania, quoting large sections of
it. No weighing of the evidence or reference to other sources of evidence
that support the Applicant’s submissions about police corruption and lack of
police effectiveness is mentioned by the PRRA Officer. (Motion Record, pages
169-170)
[30]
The PRRA Officer also fails to address the
Applicant’s fears that:
Constantin
is described as a recidivist criminal in the Romanian Court judgment,
indicating that previous criminal punishment did not deter him from committing
further crimes.
Constantin
demonstrated that he was not afraid of the police in yelling out a death threat
against the Applicant, at the police station, in front of police officers.
Constantin’s
men continued to visit the Applicant and her mother after she was able to
escape from them. After she gave her statement to the police, they continued to
look for her subsequent to her departure from Romania for Hungary, and
after members of the trafficking ring were convicted on April 25, 1998.
The
Applicant’s mother has learned from a friend of the Applicant, Maia, that
Constantin has returned and is living in Arad;
furthermore, there is a connection to Constantin as Maia’s ex-boyfriend was in
jail with Constantin and is still known to him.
Constantin
and the other men, convicted in 1998, have a new and strong reason to take
issue with the Applicant and to cause her harm. (Motion Record, pages 6, 11, 17
and 32).
[31]
This information should have been addressed in
assessing state protection. At a minimum, a need exists for the matter to
be considered. As no reference is made to this evidence, it appears to have
been ignored. (Cepeda-Gutierrez v. Canada (MCI), [1998]
F.C.J. No. 1425 (T.D.)(QL))
[7]
Justice
Shore continues by citing Justice Evans in Cepeda-Gutierrez, [1998]
F.C.J. No. 1425 (T.D.)(QL) and concludes that, at a minimum, the PRRA officer
should have cited the relevant evidence and provided an explanation as to why
it did not carry any weight in the determination. I make the same finding.
The decision of the PRRA officer is patently unreasonable; it failed to recite
and consider relevant evidence and explain how it was dealt with in coming to
the decision. Had the officer done so he would not have come to the decision
that he did. The evidence is clear that the Applicant will be exposed to
substantial risk if she were to be returned to Romania and there is
a lack of adequate state protection. I repeat and adopt the findings of Justice Shore at
paragraphs 37, 42 and 43 of his decision:
[37] If deported to Romania, it would seem that the Applicant would suffer irreparable
harm. This is due to a serious risk to her life or cruel and unusual treatment
at the hands of the men who formerly trafficked her into prostitution.
…
[42] Given that the issue of
risk to the Applicant's physical safety is at the core of the challenged PRRA
decision, removal of the Applicant to Romania, now, would effectively render
her application for leave and for judicial review moot, in that she would be
exposed to the very risks which she argues in her PRRA would result in her not
being deported to Romania. In light of the jurisprudence regarding irreparable
harm, execution of a deportation order, prior to a final determination
concerning her application for leave and judicial review, constitutes
irreparable harm.
[43] The Applicant states that
she would have to return to live with her mother in Arad,
Romania. That is the only place she has to go, as she is
not in a financial position to go anywhere else. She has learned that the
former leader of the trafficking ring, Constantin, is now released and living
in Arad. (Motion Record, pages 6, and 17-18)
[8]
The
Application is allowed. The matter is returned to be considered by a different
PRRA officer mindful of these reasons and those of Justice Shore. The
parties are agreed that there is no question for certification.
JUDGMENT
For the Reasons given:
THIS COURT ADJUDGES that:
1. The
Application is allowed;
2. The
matter is returned for consideration by a different PRRA officer mindful of
these reasons and those of the Court in 2007 FC 792;
3. There is no Order as
to costs.
"Roger
T. Hughes"
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