Date: 20080918
Docket: IMM-933-08
Citation: 2008 FC 1054
Toronto, Ontario,
September 18, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
SERGIU VACARU
TAMARA GHEORGHIU
OLIVIA VACARU
OVIDIU VACARU
ADRIANA VACARU
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The present
Application concerns the principal Applicant, a citizen of Romania and Moldova, who challenges a
negative Pre-Removal Risk Assessment (PRRA), dated January 11, 2008, with
respect to his return to Romania. A principal argument of the
challenge is that the PRRA Officer who rejected his application did not
properly assess the newly submitted evidence with respect to the risk he would
face in Moldova if he is required to return
to Romania.
[2]
The Applicant’s
claim for protection was rejected by the Refugee Protection Division (RPD) on
April 26, 2007. The Applicant’s argument both before the RPD and the PRRA
Officer is that if he is returned to Romania there is more than a mere
possibility that he will be required to take up domicile in Moldova before he
will be allowed to take up domicile in Romania. While the RPD rejected his
claim by rejecting the substance of this argument, it, nevertheless, found that
were he to return to Moldova he would be persecuted. The
Applicant’s challenge to the decision under review is that the PRRA Officer
relied on the substance of the rejection detailed in the RPD decision in the
face of conflicting evidence submitted to the PRRA Officer. The Applicant’s
argument on the present Application is as follows:
This opinion concerns itself with the
questions whether the PRRA officer made grave errors with respect to his
analysis of real risk, state protection, domicile etc. in Romania and the risk related to
extradition to R. Moldova of the category of Romanian citizens with multiple
citizenship and permanent residence outside the European Union and irreparable
harm which may result if Vacaru’s family will be removed to Romania- see
decision of Federal Court (FC) from March 17, 2008 on stay of removal order [pages
8-10 in this Application Record, S. Vacaru et al v. Canada (Minister of
Citizenship and Immigration)]
This argument was effectively accepted by
Justice O’Reilly on March 28, 2008 as a serious question on a stay of removal
with respect to the PRRA decision under review.
[3]
The
Applicant presented the following “new evidence” argument to the PRRA Officer:
.
Please note that Mr. Vacaru and family
claimed refugee status on in January 4, 2006. Although Mr. Vacaru was found not
to be a Convention Refugee under IRB decision, new evidence has come to light
regarding the risk to life and torture they would face if returned to R.
Moldova, or Romania. This evidence was not
presented at their refugee hearing because 1) a lack of natural justice when
the claimant was not allowed to present all documents and explanations, 2) some
important facts about their immigration status in Spain, Portugal and Romania
were distorted and 3) certain existing visa and passport proofs were falsified
and, finally, 4) new evidence appeared after the IRB decision was taken.
Therefore such evidences may be considered in a PRRA Assessment. We submit that
Mr. Vacaru and his family are persons in need of protection because of a risk
to life or cruel and unusual treatment as set out in Section 97 (1) (b) of
IRPA. [Emphasis added]
(Tribunal Record,
p. 77)
[4]
In
reaching a decision on the Applicant’s PRRA Application, the PRRA Officer
relied on the following RPD finding:
With respect to the alleged inability of
the claimants to establish domicile in Romania, without having to go to Moldova, the panel notes the Romanian
citizenship laws state the following, and, on a balance of probabilities, I
find that Romania’s entrance to the EU ensures their
observance:
Article 19, No Romanian citizen may be
extradited or expelled from Romania; …[Emphasis added]
(Tribunal Record, p. 102)
[5]
In the
PRRA application the Applicant tendered the following evidence:
There is the article 24 of the Romanian
Law nr. 302/2004 “On International Cooperation in Justice” which allows to
re-deport citizens of Romania to the County of first
citizenship and permanent residence (for this case, R. Moldova). Document A12
contains the translation of that Article and a case, when a citizen with double
citizenship, of R. Moldova and Romania, even he had domicile in Romania, but in
the past he lived in R. Moldova, was extradited to R. Moldova on request of the
General Prosecutor of R. Moldova.
[…]
The Law 302/2004 was not analyzed by the
IBR judge, see page 8, on decision A07. She only stated formally Art. 19 that
“No Romanian citizen may be extradited or expelled from Romania” and Art. 16 “Citizens are
equal before the law, et al;” But we can see, that in Romania there are effective
laws contradicting the Constitution and International Law, when there are
citizens of two categories (with domicile and not domicile in Romania), with
different rights, and the second category are usually extradited if the there
are requests, or false criminal charges.
(Tribunal Record, p.84)
“Document A12” in the quoted passage
contains the following statement:
Following art. 24 letter c) from Law nr.
302/2004, the Romanian citizens can be extradited from Romania following
international conventions to which Romania participates and on base of reciprocity,
if the extradited person has also the citizenship of the requesting state.
The Law does not requests to satisfy
cumulatively all conditions written in art. 24, but following it the Romanian
citizens can be extradited from Romania
if it is satisfied at least one condition, among those the Law lists that from
art. 24 letter c). So, from the file, one follows that M.M. is also a citizen
of the Republic of Moldova. [Emphasis added]
(Tribunal Record, pp. 113-114)
[6]
The
Applicant’s newly submitted evidence provides doubt as to the RPD’s findings
respecting the law of Romania. However, the PRRA Officer’s
determination with respect to this newly submitted evidence is as follows:
A12 and A13: Romanian Legislation.
The applicant has provided documentation
pertaining to extradition rules and establishing domicile in Romania. I find that this information
is not new evidence as it was reasonably available for presentation to the RPD.
I have insufficient evidence before me that the legislation was enacted after
the negative RPD decision. The applicant has not provided a satisfactory
explanation as to how it constitutes new evidence or why this documentation was
not reasonably available before the RPD rendered its negative decision.
(PRRA Decision, p. 4)
[7]
The question
is whether the PRRA Officer committed a reviewable error in not accepting the
Applicant’s newly submitted evidence. The Applicant’s evidence on the PRRA was
supplied through an immigration consultant. The consultant’s letter enclosing
the evidence displays a complete lack of appreciation of the issues which are
in play in a PRRA Application. As a result, the “application” does not provide
an argument which directly addresses the criteria in s.113 of the IRPA
as to why the Article 24 evidence should be admitted as “new evidence” by the
PRRA Officer. Without the argument, I find that the PRRA Officer did not err in
determining that the evidence was not admissible. As a result, I find no
reviewable error in the decision under review.
ORDER
Accordingly, the Application
is dismissed.
There is no question to
certify.
“Douglas R. Campbell”
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