Date:
20130611
Docket:
IMM-7487-12
Citation:
2013 FC 628
Ottawa, Ontario,
June 11, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
|
|
RUSLAN TINCUL
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Mr.
Tincul says he was framed for his mother’s homicide by Moldovan authorities and
then either received a pardon or was the beneficiary of an amnesty. The Refugee
Protection Division of the Immigration and Refugee Board therefore erred, he
says, when it found that he was excluded from protection by reason of Article
1(F)(b) of the United Nations Convention Relating to the Status of
Refugees, being a Schedule to the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA]. For that reason, he contends, the Court should
grant his application for judicial review under section 72(1) of IRPA
and send the matter back to the Board for reconsideration.
[2]
For
the reasons that follow, the application is dismissed.
BACKGROUND:
[3]
Mr.
Tincul is a citizen of the Republic of Moldova. His father was killed in 1991.
His mother was killed in 2001. The applicant alleges that both his parents were
killed for exposing corruption in the Moldovan government. He acknowledges,
however, that he was found guilty in October 2001 of intentional bodily harm
causing the death of his mother and sentenced to five years in prison.
[4]
According
to a document from a Court in the town of Cimislia, the conviction was based on
an admission of guilt by the applicant and the evidence of several witnesses.
It appears from the same handwritten document, translated and entered into
evidence by the Minister, that the applicant had previously received a pardon
for a theft conviction because of an amnesty stemming from the fifth
anniversary of the Moldovan Constitution. In November 2004, a Court ordered his
release on parole from the sentence imposed for the homicide.
[5]
After
his release, the applicant married and adopted his wife’s surname to avoid the
negative publicity surrounding his mother’s death. He says that he attempted to
clear his name by approaching the authorities and attempting to speak to a
journalist who had met his mother. In 2009 the applicant says he was detained
and tortured by the police. A request for a US visa that year was refused. In
January 2010, he says that he was the victim of a kidnapping. He received a US visa on March 31, 2010 and arrived in the United States on June 13, 2010. He claimed refugee
protection at the Canadian border on October 29, 2010.
DECISION UNDER
REVIEW:
[6]
The
Refugee Protection Division made its decision on June 28, 2012. The Panel
Member accepted the Minister’s allegation that the applicant had been found
guilty of a Moldovan crime comparable to the offence of manslaughter under the Criminal
Code of Canada with respect to his mother’s death. The applicant did not
dispute that finding but argued that he did not commit the crime and that the
court proceeding was a sham contrived to make him a scapegoat for the actions of
others.
[7]
Notwithstanding
the objective documentary evidence of corruption and politicization in the
Moldovan justice system, the Member concluded that the applicant likely did
commit the crime he was accused of and that his claim of innocence was not credible.
She did not accept that the evidence supported a finding that all of the
persons involved in the court proceedings, including the police, prosecutor,
court officials and witnesses, would have engaged in massive collusion against
the applicant.
[8]
The
Member did not find it credible that upon his release, the applicant would have
attempted to obtain redress by complaining to the very police who had
investigated the death of his mother, instead of pursuing an appeal or
contacting oversight authorities. The Member also found a contradiction between
the applicant having changed his name to avoid publicity and his assertion that
he had pursued publicity regarding his case. She gave little weight to the late
disclosure of a letter from the applicant’s sister as the applicant had no
explanation for not producing it earlier in the proceedings and the sister’s
signature was questionable.
[9]
The
Member also found the applicant had misrepresented the nature of the beatings
he suffered in 2009 and 2010. His Personal Information Form narrative gave the
impression it was due to his quest to expose his wrongful conviction, but his
oral testimony indicated that it was a result of broad political protests
against the government.
[10]
While
the Member understood that convictions resulting from an unfair hearing should
not be recognized in the context of an exclusion hearing, she found that the
applicant had not demonstrated that he had been framed. As a result, there were
serious reasons to believe he had committed the crime. The crime was not
political as it was alleged to have occurred as the result of a longstanding
dispute over the mother’s drinking and misuse of the family’s limited
resources. It was presumptively serious enough to warrant exclusion due to
being equivalent to Canadian crimes that would warrant more than a ten year
sentence.
[11]
The
Member rejected the applicant’s claim that he had been pardoned. Although a
government document indicated he held no criminal record despite his
conviction, the applicant did not give any oral evidence confirming a pardon.
The Member considered the circumstances of the crime and concluded that the
mitigating factors did not outweigh the factors indicating that it was a
serious crime. She therefore concluded that the applicant was excluded. In the
alternative, she found, the presumption of state protection was applicable.
ISSUES:
[12]
The
applicant made no submissions on the question of the standard of review. I
accept the respondent’s position that the standard has been satisfactorily established
by the jurisprudence and is reasonableness for the Board’s credibility findings
and assessment of the evidence: Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paragraph 46; Demirtas v Canada (Minister of
Citizenship and Immigration), 2011 FC 584 at paragraph 23; and Oluwafemi
v Canada (Minister of Citizenship and Immigration), 2009 FC 1045 at
paragraph 38.
[13]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable, and intelligible and within the range of acceptable
outcomes based on the evidence before it: Khosa above, at paragraph 59.
It is not up to a reviewing court to substitute its own view of a preferable
outcome, nor is it the function of the reviewing court to reweigh the evidence.
[14]
While
the applicant has raised a number of questions about the Board’s findings, they
can be summarized by asking whether the Board erred in rejecting the
applicant’s claim.
ANALYSIS:
[15]
In
my view, the applicant has identified no reviewable error in the Board’s
decision.
[16]
The
applicant’s theory of a conspiracy was put to the Board, which reasonably
rejected it due to its inherent implausibility and the applicant’s lack of
credibility. The applicant gave inconsistent testimony and could not explain
the inconsistencies in his evidence. The Board accepted the country condition
evidence showing that there was corruption in the Moldovan criminal justice
system, but concluded that nothing in that evidence suggested such an elaborate
and sophisticated level of collusion as alleged by the applicant.
[17]
On
the question of the alleged pardon or amnesty, the criminal history certificate
issued by the Moldovan authorities is “muddled”, as the Member described it. It
both asserts that the applicant had been found to be criminally responsible and
also that he has no criminal record. In any event, the statement was an
insufficient basis upon which to find that the applicant had established that he
had received a pardon. In his oral testimony, the applicant stated that he had
been surprised to see the reference to no record as he had not applied for a
pardon nor claimed to have received one. In the circumstances, it was not open
to the Member to speculate as to the meaning of the statement. One alternative
meaning, for example, is that no charges remained outstanding against the
applicant.
[18]
The
Member considered the comments at page 157 of the Handbook on Procedures and
Criteria for Determining Refugee Status of the United Nations High
Commissioner for Refugees (the UNHCR Handbook) that there is a
presumption that the exclusion clause is no longer applicable when an applicant
has been granted a pardon or has benefitted from an amnesty. As the Federal Court
of Appeal noted in Jayasekara v Canada (Minister of Citizenship and
Immigration), 2008 FCA 404 at paragraph 39, the UNHCR Handbook is not
binding but may be relied upon by the courts for guidance. Given that the
evidentiary burden was on the applicant, it was open to the Board to conclude
that he had not established that he was pardoned. The only reference in the
evidence to an amnesty is found in reference to the applicant’s earlier theft
conviction which was not the basis for the exclusion determination. It was not
necessary for the Member to address an issue not raised by the evidence.
[19]
The
Member carefully considered the Jayasekara factors in arriving at her
conclusion that the applicant’s crime was serious and I see no reason to
interfere with her findings.
[20]
No
serious question of general importance was proposed for certification.
JUDGMENT
IT IS
THIS COURT’S JUDGMENT that the application is dismissed. No
question is certified.
“Richard G. Mosley”
Email this Content