Date: 20030717
Docket: IMM-3946-02
Ottawa, Ontario, the 17th day of July 2003
Present: the Honourable Mr. Justice Rouleau
Between:
GABRIELA CARLA BOLBOACA
Applicant
And:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
"P. ROULEAU"
JUDGE
Certified true translation
Peter Douglas
Date: 20030717
Docket: IMM-3946-02
Citation: 2003 FC 891
Between:
GABRIELA CARLA BOLBOACA
Applicant
And:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU J.
[1] This is an application for judicial review of an August 6, 2002 decision of the Refugee Division of the Immigration and Refugee Board that the applicant is not a Convention refugee.
[2] The applicant is a citizen of Romania. She seeks refugee status in Canada, claiming a well-founded fear of persecution due to her political opinion and Hungarian nationality.
[3] According to the applicant, the Romanian population in the area was deceived, manipulated and brought into the city by bus and by car on March 20, 1990. They attacked Hungarians in the city of Tirgu Mures who had peacefully demonstrated for their rights the day before. The applicant's husband, who is not Hungarian, witnessed the attack and spoke out against it on television. As a result, her family received telephone threats and was attacked at home, and her husband was beaten up. People called her husband a traitor, and he was fired from his position at city hall.
[4] The applicant claims that she and her husband reported this to the police but were unable to identify their attackers. After being struck and insulted again, this time in front of her children, she made a second complaint to the police, but they refused to entertain it. In 1992, her children were persecuted by their teachers and beaten up and threatened by other students at school; she had to transfer them to a new school four times.
[5] According to the applicant, on August 8, 2001, she was attacked and beaten up, hospitalized and given painkillers for the pain from blows to her ribs. She decided to leave Romania with her family after her daughter was attacked on August 15, 2001.
[6] The applicant claims that on the way to Canada, a blow from a suitcase broke her already-injured rib. She found out that she had a broken rib a week after she arrived. In her opinion, the broken rib was a result of the August 8, 2001 attack.
[7] In December 2001, the applicant was diagnosed with breast cancer, which had spread to her bones. She disclosed this to the Refugee Division at the June 6, 2002 hearing. She claims in her submissions that at the hearing, she was suffering from painful cancer and taking medicine that contained the narcotic opium. Her ability to testify was thus so diminished that she could not explain the grounds for her claim; she felt dizzy and numb.
[8] The applicant says that nobody at the hearing asked if she was taking medicine or explained that she could get a postponement. She feared that if she asked to stop the hearing, her claim would be rejected immediately and she would be sent back to Romania.
[9] On August 6, 2002, the Refugee Division found the applicant not to be a Convention refugee. The Refugee Division held that:
The panel does not believe the claimant has problems because of her husband's involvement in the events of March 1990. Instead, the panel believes that the claimant's spontaneous answers show that her husband's problems are of a completely different nature from those alleged in support of her claim. It goes without saying that the claimant did not have problems either that would be associated with her husband's "statements" on television, given that his problems are economic in nature.
[10] The Refugee Division found that the applicant had broken her rib on the way to Canada, her bones being fragile due to her illness. The Refugee Division also found that since sales were going well for her husband, who had stayed in Romania, and since, according to the applicant, people in his company were leaving him alone, the evidence showed that "her husband does not have serious problems".
[11] The applicant does not dispute the substance of the decision. Rather, the issue is whether the Refugee Division, when it learned that she had cancer, should have considered whether her health and prescribed medication allowed her testify or whether the hearing should instead have been postponed.
[12] The applicant submits that in neglecting to consider this, the Refugee Division violated her right to fundamental justice. The respondent referred to subsections (1) and (2) of rule 13 of the Convention Refugee Determination Division Rules, SOR/93-45, which read as follows:
(1) Before the commencement of a hearing, a party may apply in accordance with rule 27 to the Refugee Division to have the hearing postponed.
(2) Before the resumption of a hearing, a party may apply in accordance with rule 27 to the Refugee Division to have the hearing adjourned.
[13] The respondent submits that it is up to the person concerned to request a postponement and that the Refugee Division has no obligation to offer one on its own initiative. Furthermore, the request has to be made at the earliest opportunity.
[14] I agree with the respondent's submissions. There is nothing in the transcript to indicate that the applicant was unable to answer all of the questions she was asked. She has produced no evidence to show that she was visibly suffering from a physical problem or obviously in pain and that the Refugee Division pretended not to notice. Absent a visible problem, the onus was on her to ask the Refugee Division for a postponement.
[15] Given that the applicant does not dispute the facts or the reasons for the decision of the Refugee Division, there is no need to comment on the respondent's arguments on those points.
[16] The Refugee Division did not violate the applicant's right to fundamental justice by neglecting to look into her medical situation.
[17] The application for judicial review is dismissed.
"P. ROULEAU"
JUDGE
OTTAWA, Ontario
July 17, 2003
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET: IMM-3946-02
STYLE OF CAUSE: GABRIELA CARLA BOLBOACA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 25, 2003
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE ROULEAU
DATE OF REASONS: July 17, 2003
APPEARANCES:
Alain JOFFE FOR THE APPLICANT
Zoé RICHARD FOR THE RESPONDENT
SOLICITORS OF RECORD:
Alain Joffe
606-10 St-Jacques
Montreal, Quebec
H2Y 1L3
Tel: 514-288-2240
Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec
Respondent