Date: 19990305
Docket: IMM-2140-98
Between:
ANDREI MARIAN GICU
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Refugee Division, dated April 22, 1998, in which it was determined that the applicant is not a Convention refugee.
FACTS
[2] The applicant is a Romanian citizen. He indicates on his Personal Information Form (PIF) that he is homosexual. He claims to have been held in a psychiatric hospital for 2 months in 1982 while doing his military service, and imprisoned from June to December 1989, when he was freed during the revolution. In 1991, in the company of a friend, he claims to have been arrested by the police and held for 7 days, beaten and threatened with death.
[3] Released on the condition that he report to the police station whenever summoned, the applicant hid for several days with friends and finally left Romania when he was told that a warrant for his arrest had been issued. On April 15, 1991, he left his country after obtaining a passport to travel to Italy. He lived illegally in Italy for 18 months. In August 1992, he left Italy and went to Belgium, where he lived for 12 months before returning to Italy in August 1993, where he remained until leaving for Canada in November 1996.
[4] The applicant has a psychiatric record dated January 21, 1998, and a psychological assessment dated March 17, 1998, that both indicate psychological problems .
[5] The panel refused to grant the applicant refugee status on the grounds that there had been a change in circumstances in Romania and he no longer had a reason to fear persecution based on his homosexuality. In November 1996, legislative amendments were introduced that decriminalized homosexual relations in private; however, homosexual relations in public are still illegal.
[6] The panel observed that the documentary evidence revealed only two cases since 1993 where people had been imprisoned for having homosexual relations in a public place.
[7] The panel also indicated that the applicant had not established that he had suffered such appalling persecution that it could justify a refusal to avail himself of the protection of his country, as set out in the requirements established by the Federal Court of Appeal in Obstoj 1 concerning the application of subsection 2(3) of the Immigration Act 2.
[8] It noted that the applicant lived with relatives until he left Romania and given the circumstances, it believed that he would be able to re-establish himself in his country. The panel also noted the fact that he had lived in several countries demonstrates his resourcefulness and ability to adapt socially.
[9] Counsel for the applicant contends that the panel erred in law by determining that there had been a change in circumstances, since not all homosexual relations are now permitted. He also alleges that the panel failed to consider the seriousness of the atrocities that the applicant claims to have suffered .
ANALYSIS
Change in circumstances
[10] Essentially, the panel based its decision on the fact that homosexual relations in private are no longer illegal. Furthermore, the panel noted that according to the documentary evidence submitted, only two people since 1993 had been imprisoned for having homosexual relations in public.
[11] In my opinion, considering the applicable test for well-founded fear of persecution and change in circumstances, it seems that since the applicant"s departure in 1991, all the evidence presented led the panel to reasonably conclude that there was in fact a change in the government"s attitude toward the homosexual community, and that in such circumstances the applicant no longer had reasonable grounds to fear persecution.
| Presence or absence of compelling reasons related to previous persecutions according to subsection 2(3) of the Act. |
[12] In Obstoj, the Federal Court of Appeal established the applicable law concerning the interpretation of subsection 2(3) of the Act:
| On any reading of subsection 2(3) it must extend to anyone who has been recognized as a refugee at any time, even long after the date of the Convention. It is hardly surprising, therefore, that it should also be read as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution. |
| The exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of present day claimants. I can think of no reason of principle, and counsel could suggest none, why the success or failure of claims by such persons should depend upon the purely fortuitous circumstance of whether they obtained recognition as a refugee before or after conditions had changed in their country of origin. Indeed an interpretation which produced such a result would appear to me to be both repugnant and irrational 3. |
[13] Considering the account given in the applicant"s PIF and examinations conducted at the hearing (of the applicant and Mr. Nanau Lucian, a permanent resident who has known the applicant since he lived in Romania), and the applicable test under subsection 2(3) of the Act, it appears from all the evidence that the panel did not commit any reviewable error.
[14] Although the applicant claims to have been held in a psychiatric hospital for several months, imprisoned twice and beaten while he was in prison, the reported events still do not meet the conditions set out by this Court"s past decisions on the level of atrocity required. Furthermore, it is difficult to determine the level of atrocity experienced by the applicant since he does not describe the events.
[15] For example, in Jiminez4, the applicant, originally from El Salvador, claimed to have been electrocuted, disfigured, burnt with boiling milk and then left for dead.
[16] As the panel points out, the applicant has a strong ability to adapt to changing situations and great resourcefulness, since he was able to travel through various countries for over five years without having any problems with the authorities in these countries. Given this observation, it is difficult to conclude that the applicant suffers from a psychological trauma that continues to affect him almost 10 years after it occurred.
[17] The panel did not commit any error in evaluating the facts with respect to applying subsection 2(3) of the Act.
[18] The application for judicial review is dismissed.
[19] Counsel for the applicant requested the certification of the following question:
| Can the panel substitute its specialized knowledge for documentary evidence when it does not have specific information about the matter in dispute? |
[20] I am not convinced of the general importance of this question. Thus, the question will not be certified.
Danièle Tremblay-Lamer
JUDGE
MONTRÉAL, QUEBEC
March 5, 1999.
Certified true translation
Monica F. Chamberlain
Federal Court of Canada
Trial Division
Date: 19990305
Docket: IMM-2140-98
Between:
ANDREI MARIAN GICU
Applicant
and:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2140-98
STYLE OF CAUSE: ANDREI MARIAN GICU
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: March 4, 1999
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: March 5, 1999
APPEARANCES:
Serban Mihai Tismanariu for the applicant
Marie-Claude Demers for the respondent
SOLICITORS OF RECORD:
Serban Mihai Tismanariu, lawyer
Montréal, Quebec for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent
__________________1 Canada (Minister of Employment and Immigration) v. Obstoj , [1992] 2 F.C. 739 (F.C.A.).
4 Jiminez v. Canada (M.C.I.) (January 25, 1999), IMM-1718-98 (F.C.T.D.).