Date: 20031202
Docket: IMM-3865-02
Citation: 2003 FC 1407
BETWEEN:
ILIE HUSLEAG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
MacKAY J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the "panel"), dated August 1, 2002, wherein the Applicant was found not to be a Convention Refugee. The Applicant seeks an Order granting his application for judicial review, setting aside the decision of the IRB, and declaring the Applicant to be a Convention Refugee, or in the alternative, an Order granting his application for judicial review, setting aside the decision of the IRB, and sending his application for refugee status for reconsideration.
[2] The Applicant is a twenty-nine-year-old citizen of Romania who arrived in Canada on July 15, 2001 on a container ship. He made a refugee claim based on alleged persecution resulting from his Pentecostal religion, his Russian ethnicity, and his desertion from the Romanian military.
[3] The Applicant claims that he tried to leave Romania on more than one occasion. In February 2000, he worked in Greece for two months before being returned to Romania because he was in Greece illegally. Thereafter, he returned to Greece, where he again worked illegally before returning once more to Romania. In August 2000, he entered Italy, and worked there as a bricklayer until he was arrested over a year later for being an illegal alien. At that time he made a refugee claim, but this was denied on the basis that he had worked illegally. The Applicant then left Italy for Canada. He claims that he does not want to return to Romania because of the persecution he would face there.
[4] The Applicant testified to the panel that he possesses a high school diploma as a bricklayer and carpenter, and that he had thereafter obtained a five-year contract with a construction company. However, at the age of nineteen the Applicant was conscripted into the Romanian military, and his contract with the construction company was put on hold. Although military service was against his religious beliefs, the Applicant served when conscripted because the penalties for avoiding service were two to five-years imprisonment and a fine of five million lei.
[5] While in the military, the Applicant claims he was the target of persecution, manifested in his being singled out to perform tasks others were not required to do, and being denied permission to leave. Upon completing his service in the military the Applicant attempted to get other jobs, but he was unsuccessful and he returned to work with the construction company. He claims he often lost jobs because of his religious beliefs.
[6] Additionally, the Applicant claims that on two occasions in 1992, people broke the windows of his church while he and others were there worshipping, and the police did nothing. In 1997, people threw stones at worshippers including himself. In his testimony, but not in his personal information form ("P.I.F."), he further stated that such incidents occurred two or three times a month.
[7] On April 4, 2002, the IRB issued a notice to appear to the Applicant for the hearing of this refugee claim on April 23, 2002. At the hearing, the Applicant sought to adduce additional documentary evidence in support of his claim, which evidence he says was refused by the panel. It is said that the Applicant's representative objected, however the hearing proceeded.
The Decision in Question
[8] By its decision of August 1, 2002, the panel, for reasons stated by it, found that the documentary evidence did not demonstrate persecution of Pentecostals in Romania today. While the earlier stoning and vandalism of the Applicant's place of worship was offensive, the panel found these incidents did not rise to the level of persecution. As a result, it found there was no serious possibility of persecution on the ground of his religion if the Applicant returned to Romania.
[9] Further, regarding the Applicant's claim of persecution based on his Russian ethnicity, the panel found that he had embellished his story of a single incident when he was only sixteen-years-old. Following this incident, the Applicant was still able to attend school, graduate, and find work. He did not establish by credible evidence that he would face persecution because of his ethnicity.
[10] Finally, the panel did not find the Applicant's claim of fear due to his desertion from the military reserve was objectively based, citing documentation that indicated there has been no law in force since 1989 preventing the travel of ex-military personnel, presumably outside Romania.
[11] Moreover, the panel concluded that the Applicant's return to Romania from Greece on two occasions discredited his claimed fear of persecution. The Applicant had not made a refugee claim in Greece, and he had only made one in Italy after being picked up by the authorities after living there for over a year. In the view of the panel, he did not establish a subjective fear of persecution.
[12] The Applicant raises only the following issue in this judicial review:
Whether the IRB denied the Applicant natural justice when they failed to permit him to adduce additional documentary evidence at the refugee hearing?
[13] Early in the course of the panel's hearing, counsel for the Applicant sought to present certain documents. The Chair of the panel commented:
. . . For future cases, it's been my policy to have everything, as much as possible, disclosed 20 days before the hearing...So I'm just going to tell you for the next time.
The Chair then accepted certain documents, declining to accept only those written in Romanian without translation in one of Canada's official languages, and a document describing country conditions which was over a year old.
[14] The Applicant first submits that there is no rule under the Convention Refugee Determination Division Rules, SOR/93-45 ("CRDD Rules") that requires an applicant for refugee status to file documentary evidence twenty or thirty days prior to a hearing. That appears to be the case. But the basis for this issue raised by the Applicant is not established by the record. Indeed, the transcript shows that some documents adduced were accepted, and before the hearing ended the Chair referred to the panel's obligation to consider written materials submitted after the hearing and before its decision was rendered. The evidence from the transcript of the panel's hearing does not support the applicant's allegation that all additional documents tendered by counsel were not permitted to be adduced and filed, though some were.
[15] Second, the Applicant submits that since notice regarding the date for the hearing was provided less than twenty days prior to the date it was scheduled, it was impossible for the Applicant to know the date for filing of the materials, or presumably, to file documents some 20 or more days in advance of the hearing.
Analysis
[16] Section 14 of the CRDD Rules, then applicable, stated:
|
14. (1) A person concerned shall provide the Refugee Division with information respecting the claim, including
. . .
(2) The information referred to in subsection (1) shall be
(a) provided on the form that was served on the person pursuant to paragraph 6(1)(c) or on a similar form; and
(b) filed
. . .
(iii) within 28 days after the day on which the form is served on the person concerned pursuant to paragraph 6(1)(c), or within 35 days after that day where the information is filed by prepaid regular mail. |
14. (1) L'intéressé fournit à la section du statut les renseignements relatifs à sa revendication, notamment:
. . .
(2) Les renseignements visés au paragraphe (1) sont:
a) fournis sur le formulaire qui a été signifié à l'intéressé conformément à l'alinéa 6(1)c) ou en une forme semblable;
b) déposés:
. . .
(iii) dans les 28 jours qui suivent la date à laquelle le formulaire a été signifié à l'intéressé conformément à l'alinéa 6(1)c), ou dans les 35 jours qui suivent cette date dans le cas du dépôt par courrier ordinaire affranchi.
|
[17] Section 14 clearly applies to the Applicant's case. The record does not support the Applicant's implication that the first notice to produce documents was the April 4, 2002 notice to appear for a hearing. The Respondent points to other notices which informed the Applicant of the need to file relevant evidence and documents with the IRB. These include a notice dated August 24, 2001 asking the Applicant to submit any documents on which he intended to rely on in making his claim, and that "such documents should be disclosed in advance of the hearing." Also, a letter dated December 5, 2001 informed the Applicant of the major issues involved in his claim, and asking him to submit any documents which he intended to rely on "as soon as possible." Clearly, the Applicant was given notice to produce documents, commencing almost eight months prior to the date scheduled later for the hearing.
[18] Finally, the Applicant submits that the Applicant's representative "expressly and implicitly" sought an adjournment in order to submit further evidence, a request said to have been denied by the panel. The Applicant submits that this was unfair, and that an adjournment ought to have been granted in order to permit the filing of additional evidence.
[19] There is some disagreement and the record is unclear whether an adjournment was requested. Whether a request was made or not, the panel had the discretion to allow or reject such a request, so long as it was not unfair to the Applicant. As stated by Mr. Justice Sopinka, for the Supreme Court of Canada, in Prassad v. Canada (M.E.I.) [1989] 1 S.C.R. 560 at para. 16:
As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. Adjournment of their proceedings is very much in their discretion.
[20] The panel had discretion whether or not to permit new documents to be adduced. In my opinion, there cannot be unfairness where, as here, at the conclusion of the hearing, the presiding member of the panel stated:
With respect to an adjournment for new documents, the panel is not prepared to do that. Having said that, the panel is required to take into consideration all documents that you want to send forward to the panel before the decision is made.
Conclusion
[21] In my opinion, there was no breach of natural justice on the part of the IRB. There was no unfairness in the process by which it dealt with the Applicant's request to file additional documents at or after the hearing. Accordingly, this application for judicial review is dismissed.
"W. Andrew MacKay"
J.F.C.
Ottawa, Ontario
December 2, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3865-02
STYLE OF CAUSE: ILIE HUSLEAG
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: Tuesday, April 29, 2003
DATED: Tuesday, December 2, 2003
APPEARANCES:
Eugene Y. S. Tan
FOR APPLICANT
Lori Rasmussen
FOR RESPONDENT
SOLICITORS OF RECORD:
Cooper & McDonald
Halifax, Nova Scotia
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT