Docket: IMM-1342-13
Citation:
2014 FC 387
Ottawa, Ontario, April 28,
2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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RAZAN CRISTIAN TIMOFTII
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Refugee Protection Division of the
Immigration and Refugee Board of Canada [RPD] denied Mr. Timoftii’s claim for
protection under the Immigration and Refugee Protection Act, SC 2001, c
27 [IRPA] but granted his young daughter’s claim for protection.
[2]
Both Mr. Timoftii and his daughter are citizens of Romania. He is a single parent. The daughter was 14 years old at the time of the RPD hearing. On
July 20, 2011, she was kidnapped and taken to an apartment. She overheard one
of her kidnappers on his cell phone say “I
have the girl that you wanted”
or “I brought you the
merchandise.” She was so
frightened that she peed herself. Her kidnappers permitted her to go to the
bathroom, and she escaped through an open window. Her father reported the
incident to the police, but the police told the daughter not to walk alone
anymore, and told Mr. Timoftii to take better care of his daughter. The police
did not investigate further because his daughter was unable to tell them where
the abduction took place or where she was taken.
[3]
This was the only basis for both Mr. Timoftii’s and his daughter’s
claims for refugee protection.
[4]
The RPD found that the daughter was a Convention
refugee and a person in need of protection. It reviewed documentary evidence
regarding the prevalence of sex trafficking in Romania and found that sex
trafficking was widespread, that Romania did not comply with the minimum
standards for the elimination of trafficking, and that police corruption was
rampant. It found that there was a serious possibility that she would suffer
persecution for a Convention ground if returned to Romania, and that state
protection would not reasonably be forthcoming.
[5]
With respect to Mr. Timoftii’s claim, the RPD found that “there is nothing in the evidence
of any other risk or acts of persecution”
independent of those acts underlying his daughter’s claim for protection. The
RPD found that there was no reason why Mr. Timoftii would not be able to return
to Romania, and that the welfare and best interest of his daughter were assured
with her paternal aunt and her family in Canada with whom she had been staying.
[6]
The only real issue raised in this application is whether the RPD erred
by not considering Mr. Timoftii’s risk of persecution or danger to his life or
risk of torture.
[7]
Mr. Timoftii did not allege any independent ground of risk in his
Personal Information Form, and did not testify at the hearing as to a risk that
he personally faces. His daughter testified as to the events surrounding her
kidnapping; however, Mr. Timoftii’s counsel declined to call Mr. Timoftii to
testify when prompted:
MEMBER: Did you intend to call the father?
COUNSEL FOR CLAIMANT: No, I think we’re okay. It might create
some problems.
Therefore, in none of the materials before the RPD was there
any allegation of independent risk for Mr. Timoftii.
[8]
At the hearing, counsel’s only submissions with respect to Mr.
Timoftii are as follows:
With respect to her
father, even though he was not targeted you may wish to consider whether he falls
under membership in a particular social group, being the father of [his
daughter], and what the consequences would be for him having to lose his
daughter. This is something no father would want and he should be afforded to
stay with her, being her father and the caregiver for her because he does fall
within the definition of member of a particular social group…[emphasis added]
[9]
This is not an independent risk to Mr. Timoftii. He provided no
evidence as to the type of risk he would face for being the father of a
daughter who had been kidnapped. The submission in his factum that he may be
put “in harms way with her
kidnappers” and his
submission to the Court that “perhaps
the kidnappers will take revenge”
are mere speculation, not supported by any evidence.
[10]
I concur with the observation of Justice Dawson,
as she then was, in Lakatos v Canada (Minister of Citizenship and
Immigration), 2001 FCT 408, 2001 CarswellNat 862 (WL) at para 13 that “[i]n the absence of evidence that the applicants were
persecuted simply because they are members of a certain family, I cannot
conclude that the [decision-maker] erred in failing to consider the applicants
as members of a social group.”
[11]
This application must be dismissed as the
decision rendered was not only reasonable, it was the only reasonable decision
that could have been reached given the evidence. As was observed at the
conclusion of the hearing, the present facts cry out for an application from
Mr. Timoftii for permanent residence from within Canada on humanitarian and compassionate grounds.
[12]
Neither party proposed a question for
certification.
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