Date: 20010711
Docket: IMM-4119-00
Neutral citation: 2001 FCT 782
Ottawa, Ontario, Wednesday the 11th day of July 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MIHAELA-CRINA FELEKAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mihaela-Crina Felekan is a 25 year old citizen of Romania who claimed Convention refugee status on the basis of her political opinion. She brings this application for judicial review from the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated July 11, 2000 which determined that she was not a Convention refugee.
THE FACTS
[2] Ms. Felekan, from the city of Cluj near the border with Hungary, stated that the problems which she and her family encountered began after her father became a member of the Greater Romania Party ("PRM") in the summer of 1992. Ms. Felekan described the PRM to be a Romanian nationalist party which calls for the outlawing of the Hungarian nationalist party ("UDMR") because the PRM believes that the UDMR wishes to fragment Romania, turning the northern region into a separate Hungarian state.
[3] Ms. Felekan alleged that she was persecuted by members of other political parties of the governing coalition, particularly the UDMR. Ms. Felekan related a number of incidents aimed at her father, her husband who was also a member of the PRM, and herself, including an incident in September of 1998 where Ms. Felekan said she was raped for reasons of political intimidation at a time of pre-election campaigning.
[4] Ms. Felekan and her husband left Romania in June of 1999. She claimed status as a Convention refugee on her arrival in Canada on June 6, 1999. Since coming to Canada, Ms. Felekan and her husband have separated, but they are not legally divorced.
[5] The CRDD accepted that Ms. Felekan was raped, but appears to have found that to be an isolated incident of serious harm against her unrelated to political opinion. The CRDD went on to conclude that:
In assessing the threat of harm to the claimant were she now to return to Romania, the panel finds that, although the claimant and her family may have faced harassment for reasons of their involvement with the PRM, this harassment does not amount to persecution under the Convention refugee definition.
[...]
There is an absence of evidence to indicate that members of the PRM face persecution at the hands of either the Hungarian minority in Romania, the authorities in that country, or anyone else. The panel reviewed the documentary evidence, but finds that there is insufficient credible evidence before it to make a finding that the claimant, having been associated with the PRM, faces a reasonable chance of persecution were she now to return to Romania.
In the alternative, if the panel were to accept that the claimant's fear of persecution is well-founded in Cluj, it finds that the claimant has a viable internal flight alternative in Bucharest.
ISSUES
[6] Ms. Felekan raised three issues with respect to the CRDD's decision:
1. Did the CRDD fail to consider documentary evidence relevant to persecution of PRM members?
2. Did the CRDD err on an important fact when it referred throughout its reasons to Ms. Felekan's husband as her "former husband"?
3. Did the CRDD fail to consider relevant factors when it concluded that the rape of Ms. Felekan was an "isolated incident" rather than part of a pattern of attack upon her family?
ANALYSIS
(i) Did the CRDD fail to consider documentary evidence relevant to persecution of PRM members?
[7] There was no evidence in any of the documents before the CRDD relating to country conditions which would show that members of the PRM are subject to persecution.
[8] Notwithstanding, on Ms. Felekan's behalf it was asserted that the CRDD ignored the facts that the PRM and the UDMR are ethnically-based parties, and that the UDMR is part of the governing coalition in Romania, while the PRM is not.
[9] However, even assuming that Ms. Felekan's assertion that the CRDD failed to consider these matters is correct, these facts alone do not demonstrate that PRM members are persecuted in Romania.
[10] It was also asserted on Ms. Felekan's behalf that the CRDD failed to properly consider her own testimony regarding persecution.
[11] The CRDD is entitled to make findings based on implausibilities it finds in a claimant's evidence when that evidence is viewed against evidence of country conditions contained in documents before the CRDD. Here, when Ms. Felekan's testimony was viewed against the documentary evidence before the CRDD, the evidence that Ms. Felekan's parents continued to live in the family home and that threats against Ms. Felekan's family had ceased, I do not find that the CRDD's conclusion that there was an absence of evidence to indicate that members of the PRM face persecution in Romania was either patently unreasonable or clearly wrong.
(ii) Did the CRDD err on an important fact in its reasons by referring to Ms. Felekan's husband as her "former husband"?
[12] This issue was not pressed strongly in oral argument.
[13] Ms. Felekan and her husband, as noted above, separated shortly after coming to Canada. In her oral testimony before the CRDD, Ms. Felekan on at least two occasions referred to her husband as her "ex-husband" and spoke of "our divorce". Ms. Felekan also indicated that she and her estranged husband had no intention to reconcile, either in Canada or in Romania.
[14] Therefore even if the CRDD's reference to a former husband is not completely accurate (given that Ms. Felekan and her husband are not legally divorced), this reference is in substance a misstatement and is not material to the decision at issue.
(iii) Did the CRDD fail to consider relevant factors when it concluded that the rape of Ms. Felekan was "an isolated incident of serious harm" and not part of a pattern of attack?
[15] The CRDD's treatment of Ms. Felekan's evidence concerning her rape is very troubling. The CRDD wrote as follows:
The panel next considered the claimant's evidence regarding her alleged rape. It notes that incident occurred in a deserted area, and at the time it was getting dark. There is no evidence before the panel apart from the claimant's word to confirm that the alleged incident took place. The panel further notes that no medical or documentary evidence was tendered by the claimant to corroborate her allegation that this incident occurred. The panel accepts the claimant's evidence in relation to the alleged occurrence of this incident.
The claimant did not see her assailants either before or after the alleged attack. It is the claimant's evidence that the incident was related to her father's political activity, as one of the assailants allegedly indicated to the claimant that the incident was for her father. The panel finds, however, that this is an isolated incident of serious harm against the claimant.
[16] It appears from this that the CRDD accepted only part of Ms. Felekan's testimony, that relating to the fact of the rape, but rejected her testimony that the rape was politically motivated. Ms. Felekan had been asked during her direct examination as to how it was that she believed that her rape was not simply random violence. She responded that immediately following the rape her assailants said "that was for your father" and that after three days unidentified individuals telephoned her father and said that his other daughter would be next if a report was made to the police.
[17] It is well settled that while the CRDD is not obliged to accept a claimant's testimony, it is obliged to give reasons in clear and unmistakable terms for rejecting sworn testimony: Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.). In failing to give reasons for rejecting this portion of Ms. Felekan's testimony, the CRDD erred.
[18] However, the effect of such error must be considered in the light of the alternate finding of the CRDD that an internal flight alternative existed in Bucharest.
[19] With respect to the possibility of moving to Bucharest, Ms. Felekan testified that if she moved she would be required to register with the police and that people can bribe the police to obtain information in Romania. Because her father would remain active in the PRM, Ms. Felekan expressed her fear that she would be found in Bucharest and would thereafter again be threatened.
[20] However, the CRDD noted that:
The claimant lived for about three weeks in Turda where her father was from, and one month in Beclan with her husband's parents. The claimant faced no difficulties there. She did not want to stay in Turda because it was hard to get a house or apartment. She therefore went to her husband's parents' in Beclan for a month. She did not want to stay there because she wanted to finish university. There were no jobs there and no possibility to have a life there.
The CRDD also noted that Ms. Felekan was not wanted by the police in Romania, that she left Romania legally using her own passport, and that the PRM is strongest in Bucharest.
[21] The panel therefore concluded that there was no reasonable chance Ms. Felekan would face persecution were she now to return to Romania and relocate in Bucharest, and that in view of her age and apparent good adjustment (notwithstanding the emotional difficulty she suffered prior to departure from Romania), it would be reasonable for her to relocate to Bucharest.
[22] I do not find the CRDD's conclusion on the existence of an internal flight alternative in Bucharest to be either unreasonable or clearly wrong.
[23] It follows from the existence of an internal flight alternative that the application for judicial review must be dismissed notwithstanding the CRDD's error in the treatment of Ms. Felekan's testimony concerning her rape.
[24] Counsel for Ms. Felekan posed certification of a question as to whether a panel of the CRDD is entitled to draw an inference contrary to accepted evidence without giving explicit reasons for its conclusion.
[25] The respondent opposed certification of that question on the ground that the issue has been previously dealt with by this Court and so is not a serious question of general importance.
[26] I agree with the respondent's submission. Moreover, in view of the CRDD's finding as to the existence of an internal flight alternative, the issue is not determinative of an appeal.
[27] For these reasons:
ORDER
[28] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge