Docket: IMM-7535-04
Ottawa, Ontario, this 11th day of March, 2005
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
TOADER ALFRED (FREDDIE) SAVA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written
for clarification and precision)
[1] The Applicant, Toader Alfred Sava, is a 29 year-old Romanian citizen who left Romania in August of 1998. He made a refugee claim in Canada on November 6, 2002, alleging that he has a well-founded fear of persecution at the hands of the Romanian police, by reason of his criminal record.
[2] The Board in its decision dated August 9, 2004 denied his claim, finding the Applicant not credible.
[3] The Board provided two main reasons for its finding. First, in his Port of Entry ("POE") interview he had stated: "I am a-political. My claim is economically motivated ... no fear politically, no ethnic or religious persecution." He stated he had been convicted of theft twice. In his Personal Information Form ("PIF") and during the hearing, he alleged to have been arrested and jailed the second time for looking through a window. The police arrested and jailed him on suspicion alone and later released him once he obtained help from a convicted lawyer. On the basis of these experiences, he claims he feared persecution by the police. None of these facts had been mentioned in the POE Notes. The Board found his explanations not credible and thus it preferred his POE Notes. The Board also found that the evidence failed to demonstrate that the Applicant had been politically active in Romania or that the authorities were looking for him.
[4] Secondly, the Board pointed to his failure to claim refugee protection in Italy (where he spent two years) or to give a reasonable explanation for not doing so. The Board found this showed a lack of subjective fear.
[5] Counsel for the Applicant advanced two arguments:
a) The Applicant was denied procedural fairness as the POE Notes were made when the Applicant was tired, disoriented, had no counsel and was unaware of his rights. Nevertheless, the POE Notes drew conclusions which were accepted by the Board.
b) The POE Notes can be used to test contradictions between the POE Notes and the PIF. However, omissions cannot be held against the Applicant. POE Notes serve a limited purpose. As the Protected Persons Operating Manual PP1 Processing Claims for Refugee Protection in Canada, para 8.8 states "the purpose of this portion of the examination is to determine if a claim is eligible to be referred to the RPD. However, the purpose is not to delve deeply into the basis for the refugee claim". She relies on Sawyer v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1140 (QL) in support of this point.
[6] In my view, neither of these submissions can succeed. First, it would indeed be a denial of procedural fairness if the Board accepted the POE Notes as conclusive facts which cannot be altered, further elaborated on or explained in the PIF or at the hearing. However, the Board did no such thing. It did not accept the POE Notes as fact but compared them to the PIF and the statements at the hearing. It found the POE version to be more plausible and credible. That is precisely the Board's function. Its findings were logical and corresponded to the facts adduced.
[7] Second, while it is true that in Sawyer, supra, the application was partially allowed because the Board interpreted a failure to show a photo at the POE interview against the applicant, it does not stand for the proposition that omissions at a POE interview cannot be held against the applicant. In a case such as this where the Applicant says he is apolitical and makes no claim of persecution at the POE interview and then makes elaborate claims in his PIF and during the interview in respect of persecution, the Board is certainly entitled to draw negative inferences from that omission.
[8] Here, the Board's conclusions were based on omissions in the POE Notes, the Applicant's lack of credibility and his failure to seek asylum during his years in Italy. The conclusions reached cannot be regarded as patently unreasonable.
[9] Accordingly, this application cannot succeed.
ORDER
THE COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7535-04
STYLE OF CAUSE: TOADER ALFRED (FREDDIE) SAVA
AND
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: MARCH 9, 2005
AND ORDER : von FINCKENSTEIN J.
DATED: MARCH 11, 2005
APPEARANCES:
Lori Hill FOR APPLICANT
Lee Cohen
Susan Inglis FOR RESPONDENT
SOLICITORS OF RECORD:
The Halifax Refugee Clinic FOR APPLICANT
Halifax, Nova Scotia
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney-General of Canada