IMM-3395-96
OTTAWA, ONTARIO, THE 17th DAY OF SEPTEMBER 1997.
PRESENT: THE HONOURABLE MR. JUSTICE JOYAL
BETWEEN:
RODICA-LUCIANA CULINESCU
and
CORNEL CULINESCU,
Applicants,
AND:
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review in the case at bar is dismissed.
L-Marcel Joyal
______________________
J U D G E
Certified true translation
Stephen Balogh
IMM-3395-96
BETWEEN:
RODICA-LUCIANA CULINESCU
and
CORNEL CULINESCU,
Applicants,
AND:
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
JOYAL J.
This is an application for judicial review from a decision in which the Convention Refugee Determination Division of the Immigration and Refugee Board determined that the applicants are not Convention refugees. The applicants ask that the decision be set aside.
1. Facts
The applicants Rodica-Luciana Culinescu and her husband Cornel, who are citizens of Romania, claim refugee status by reason of a well-founded fear of persecution for reasons of political opinion. The facts on which their claim is based are set out in the Board"s decision.
The applicants allege that they were active in Romanian politics as members of the Christian Democratic National Peasants" Party (the CDNPP). As such, they allegedly participated in a number of demonstrations against activities of the Romanian government. During some of those demonstrations, they were allegedly arrested and detained by the police. For example, in May 1990, they were delegated by the CDNPP to go to Bucharest to demonstrate their solidarity with the students occupying University Square. On May 17, 1990, the female applicant was allegedly arrested in a police intervention and taken to the police station, where she was beaten by the officers. Their alleged intention was to induce her to sign a statement admitting that she had disturbed the peace. It is alleged that although she refused to sign such a statement, she did acknowledge in writing that she had participated in the demonstration.
A similar incident occurred on June 12, 1990, when both the applicants were allegedly arrested by the Bucharest police. Before being released, it is alleged that they were beaten and that the female applicant was forced to sign a statement she had not read.
In July 1990, the applicants were allegedly summoned to go to the police station, where they were compelled to sign a statement relating to their participation in the Bucharest demonstrations. They were allegedly warned at the same time to cease their political activities and co-operate with the police.
After this, the applicants allegedly received a second summons. They decided to ignore it and go into exile in Hungary, where they remained for almost three years.
While in exile, the applicants allegedly joined the opponents of the Romanian government, more specifically those of Hungarian origin. At the Board"s hearing, the female applicant testified that she had declared at a meeting with Romanian nationals that Romanians of Hungarian origin should be allowed to fly the Hungarian flag and celebrate Hungary"s national holiday. She also allegedly accused the Romanian government of fostering tensions between Romanians and Hungarians. She further testified that her comments were reported to the Romanian government by an agent who had infiltrated the group and that she and her husband were subsequently arrested by the police in December 1992 when they returned to Romania to visit their parents for the holidays.
It is alleged that the applicants were arrested at the border and taken to the police station in Arade, where they were detained for seven months in isolation from the outside world. They were allegedly charged with treason under provisions 155 and 167 of Romania"s penal code for participating in a conspiracy against the Romanian state and endangering its territorial integrity. According to the documentary evidence, each of these charges entails a sentence of imprisonment for 15 to 20 years. The applicants were allegedly released on July 15, 1993 pending their trial but were not told the particulars of the evidence against them.
On March 23, 1995, almost two years later, they allegedly appeared in court once again and moved for an adjournment on the ground that they had not had time to retain counsel. An adjournment was granted until May 29, 1995.
On the advice of the CDNPP leadership, which felt that the couple had no chance of a fair trial in a court controlled by the government, the applicants left Romania shortly afterwards. They went to Hungary twice in order to obtain the visas and airplane tickets needed to travel to Canada; they chose Canada because the female applicant"s brother had already been granted refugee status there.
The applicants filed in evidence the order that they stand trial together with a police summons dated November 8, 1995.
2. Panel"s decision
The Board refused to grant the applicants refugee status. It was of the view, in light of the documentary evidence, that their testimony was untrustworthy. The panel stated the following concerning the credibility of the applicants:
| [TRANSLATION] In our opinion, if is unreasonable to believe that charges this serious could be laid against the two claimants as the result of very innocuous comments made by the female claimant in a café in Budapest, Hungary. In Romania, the Hungarian Democratic Union of Romania (HDUR), which represents Romania"s two-million-strong Hungarian minority, is the second most important party in terms of its representation in the Romanian Parliament. For a long time now, the Hungarian minority"s representations to the Romanian government have gone beyond the stage of the claims stated by the female claimant. As long ago as 1991, a Transylvanian government-in-exile was set up in Budapest, and that same year a demand for autonomy was drafted by the administrative divisions of Covasna and Harghita in the centre of Transylvania, which are populated primarily by Hungarians. The same document adds that the proposed autonomy of Transylvania had supporters in France, the Netherlands, Slovakia and Ukraine, among others. We therefore consider it unlikely that the situation is as described by the female claimant. |
| Since we cannot believe the claimants" testimony on a point essential to their claim, namely that they are afraid to return to Romania because of legal proceedings against them, it is our opinion that the claimants have failed to prove a well-founded fear of persecution should they return to their country. |
| It should be added that the claimants were not afraid to return to Romania on two occasions when travelling in Hungary in 1995. Furthermore, they claimed refugee status neither in Hungary, even though the female claimant"s sister has been granted such status there, nor in the other signatory countries of the Convention they passed through in travelling to Canada. In her testimony, the female claimant acknowledged that they had chosen to claim refugee status in Canada because her brother was already living there. |
3. Analysis
It is well established that credibility is a question of fact that is entirely within the jurisdiction of the Board as the trier of fact. The panel is free to find that an applicant is untrustworthy on the basis of implausibilities in his or her testimony, provided that its findings are not unreasonable1 and that its reasons are set out in "clear and unmistakable terms".2 A reviewing court cannot therefore interfere with the Board"s findings of fact unless the panel reached its decision in a perverse or capricious manner or without regard for relevant evidence submitted to it. Furthermore, the burden on the applicants to rebut the Board"s finding that they lack credibility appears to be very heavy.
In the case at bar, the applicants contend that the panel committed an unreasonable error in finding that their claims concerning legal proceedings were implausible. Their argument is based on the fact that there was no evidence that contradicted their testimony or that could have caused it to be implausible. They submit that it was the Board"s duty to have the documents they filed in evidence studied by experts, especially if it doubted their authenticity.
The Board had no such duty. It is enough that there be sufficient evidence before it to cast doubt on the authenticity of the order to stand trial to find that the applicants" testimony was implausible.3 In the case at bar, the documentary evidence was convincing enough to support the Board"s findings. Its findings are accordingly not perverse, capricious or patently unreasonable so as to justify the Court"s intervention. I would like to add that the Board"s record contains no evidence capable of vitiating the panel"s findings.
4. Conclusion
As the panel committed no reviewable error, the motion must be dismissed.
L-Marcel Joyal
___________________
J U G E
O T T A W A, Ontario
September 17, 1997.
Certified true translation
Stephen Balogh
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3395-96
| STYLE OF CAUSE: RODICA-LUCIANA CULINESCU and CORNEL CULINESCU v. MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 12, 1997
REASONS FOR ORDER BY JOYAL J.
DATED: September 17, 1997
APPEARANCES:
Daniel Paquin FOR THE APPLICANT
Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Daniel Paquin FOR THE APPLICANT
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. (F.C.A.).
2 Hilo v. Canada (Minister of Employment and Immigration) (1992), 15 Imm. L.R. (2d) 201 (F.C.A.).
3 See Gyimah v. Canada (Minister of Citizenship and Immigration) (1995), F.C.J. No. 1519 (F.C.T.D.).