Ottawa, Ontario, October 20, 2005
PRESENT: MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"), for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated December 21, 2004, wherein the Board determined that the applicant, was not a Convention refugee or person in need of protection according to sections 96 and 97 of the Act and that the applicant, Bela Attila Biro (the "applicant"), was excluded from the benefit of refugee protection pursuant to article 1(F)(b) of the Refugee Convention.
[2] The applicant is a citizen of Romania who alleged he was persecuted and discriminated against in Romania due to his Hungarian nationality and due to the fact that he exposed corrupt public officials.
[3] In 1974, the applicant started learning Judo and within a year, became national champion. He alleges, however, that he faced discrimination and was ostracised and persecuted because of his Hungarian nationality. One incident he recounts is that, although he had beat his opponent at the national championships the following year, the judges awarded the gold medal to his opponent. He also alleges that he was not allowed to compete outside of his country.
[4] The applicant also alleges that, in the military, he was asked to change his surname to a Romanian name and to abandon his religion. He maintains that, because he refused, he was sent to a military camp in the mountains.
[5] In 1991, he became a Judo instructor and coached a Judo team. He alleges that because he disputed the judges' findings with respect to his team, he was suspended for one year from coaching duties.
[6] The applicant alleges that he wrote anonymous newspaper articles naming corrupted officials involved in an oil scam. He maintains that it was leaked that he was behind the articles and, as a consequence, the company he worked for was fined repeatedly. The company eventually dismissed him to avoid bankruptcy.
[7] He also alleges that he received anonymous letters, threatening phone calls and that the windshield of his car was broken. In 1997, he was attacked by five men who threatened his life and beat him up. He was stabbed in the chest and suffered broken ribs and a concussion. He was hospitalized for 22 days. The applicant states that he went to the police with the medical report but that nothing was done.
[8] In order to leave Romania, the applicant purchased a car with foreign license plates, a false Hungarian passport and a false driver's license. He was stopped by police patrol and charged. In November 1997, he was sentenced to a two year suspended term and probation for forgery, use of false identity and documents and unauthorized use of a car. In 1999, he alleges that he was falsely accused of fraud.
[9] In February 2002, the applicant was convicted and sentenced in Romania for fraud and forging documents under private signature.
[10] The applicant alleges that his wife and his father also suffered consequences because of the false charges against him. He met an old friend who helped him procure false documents to leave the country. In France, a Canadian Official did not allow them to board the airplane for Canada and so he returned to Hungary where he resided from August 1999 to May 2002.
[11] In the spring of 2002, he travelled to Italy and from there, to Mexico after which he travelled through the USA to Canada in a truck and on July 4, 2002, he claimed refugee protection maintaining that if returned to his country, he would be unjustly imprisoned or killed.
[12] The Board found serious credibility concerns in the applicant's evidence which rendered his story unreliable and untrustworthy. It also found that the claimant's contentions with regard to the state-imposed limitations on him in the sport of Judo to be groundless. The Board found his story to lack credibility and based on his escaping prosecution rather than persecution.
[13] The Board also determined on a balance of probabilities that the applicant was not wrongfully convicted in Romania. The Board was satisfied that the applicant was afforded due process in the court proceedings against him. In the result, the Board concluded that Article 1(F)(b) was applicable to the applicant and therefore, he was excluded from the benefits of refugee protection.
[14] The Board found further that the applicant failed to establish that he was a person in need of refugee protection.
ANALYSIS
i) The exclusion decision
[15] Did the Board err in failing to properly analyse the integrity of the judicial system in Romania to determine whether the applicant's convictions were the result of a corrupt judicial system?
[16] The Board clearly determined that the applicant was convicted of offences for which he will be jailed for 12 years should he return to Romania.
[17] While the Board accepted that there was evidence of corruption, it did not accept that the applicant was not afforded due process. In support of its conclusion, the Board reasoned that the applicant had had two appeals. However, the evidence shows that the first appeal was conducted by the court without the applicant or his counsel being involved. In my view, this indicates a serious flaw in the judicial process. In the 2002 proceeding, the applicant's lawyer was denied permission to examine the witnesses who gave written statements. This case involved the alleged theft by fraud of approximately $700,000 CDN worth of gasoline. To conduct this trial based solely on written statements does not, in my view, amount to due process.
[18] In conclusion, the Board's finding that the applicant was afforded due process is patently unreasonable. In my view, in light of the serious consequences of an exclusion under Article 1F(b), the Board should have considered whether, in the circumstances of this case, the lack of due process had an impact on the applicant's convictions.
ii) The inclusion decision
[19] Did the Board err in failing to provide a separate analysis under section 97 of the Act of the risk that the applicant would face should he be jailed in Romania?
[20] The applicant submits that the Board, having determined that the applicant was convicted of offences for which he will be jailed for 12 years should he return to Romania, failed to provide a separate analysis under section 97 of the risk that the applicant would face should this occur.
[21] This Court has repeatedly held that a separate section 97 analysis is not required if there is no evidence that could go to establishing that the person is in need of protection: Bouaouni v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1540 (QL); Soleimanian v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2013 (QL); Islam v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1711 (QL); Nyathi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1409 (QL); Ozdemir v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1242 (QL).
[22] It follows that where there is evidence that could go to establishing that the person is in need of protection, the Board is required to conduct a section 97 analysis.
[23] In Soleimanian, supra, Mosley J. canvassed the case law with respect to the requirement for a separate section 97 analysis. At paragraphs 23-24, he writes:
¶ 23 In Bouaouni, supra, it was held that the Board addressed the documentation before it and that due to important contradictions in the claimant's evidence, the Board's negative credibility findings were such that there was "no other evidence" that could have led it to find that the claimant was a person in need of protection. Therefore, in that case, even though the Board erred in failing to specifically analyse the claim pursuant to section 97 of IRPA, the court held that the Board's conclusion that the applicant was not a "person in need of protection" pursuant to subsections 97(1)(a) and (b) was open to it on the evidence.
¶ 24 In Kilic v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 52 (T.D.), I found that there was some evidence that, aside from the Convention refugee determination, the applicant would be subjected to cruel or unusual treatment or punishment because he was an absentee from conscription. In this case, there was no other evidence before the Board that Mr. Soleimanian is a person in need of protection. His claim rested entirely upon his assertion that he would be persecuted for apostasy. There was no alternative basis upon which to find that he was in need of protection under section 97.
[24] On the facts of Soleimanian, supra, the Board's negative credibility findings were such that there was no other evidence that could have led it to find that the claimant was a person in need of protection. In the case at bar, however, the negative credibility findings made by the Board were with respect to the applicant's Hungarian nationality and his contention that because he exposed corrupt public officials and other persons he was falsely prosecuted. The Board did not find the applicant's evidence regarding mistreatment in prisons to lack credibility.
[25] In Kilic, supra, the Court found that the Board failed to consider whether the applicant could be a "person in need of protection" if returned to Turkey, in light of the possibility that he could face a serious prison sentence for evading Turkish military service. Despite the Board's negative credibility findings, a separate analysis may have produced a finding that he was a person in need of protection.
[26] Similarly, here the Board found that the claimant had been convicted of crimes which would cause him to be jailed for 12 years. There was clear documentary evidence referred to which demonstrated the mistreatment of inmates in Romanian prisons. Thus, the Board was required to consider the documentary evidence within the context of the provisions of section 97 and to provide a reasoned analysis to support its determination. I find this error to be material in the context of the present case.
[27] In the result, the application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
[28] Counsel for the applicant has proposed the following question for certification:
Whether it is incumbent upon the Board, when considering an exclusion under article 1(F)(b), to engage in a more detailed analysis of the underlying judicial process where the State in question is not an established democracy and there is clear evidence of clear interference with the judiciary and judicial corruption?
[29] I am not satisfied that the proposed question raises a serious issue of general importance. Thus, there will be no question certified.
ORDER
THIS COURT ORDERS that
- The application for judicial review is allowed.
- The matter is referred back for redetermination by a newly constituted panel.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-590-05
STYLE OF CAUSE: Bela Attila Biro
and
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 4, 2005
REASONS FOR ORDER: Madam Justice Tremblay-Lamer
APPEARANCES:
| Robert Moores
|
|
| Catherine Vasilaros
|
SOLICITORS OF RECORD:
| Robert Moores Burlington, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|
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