Date: 19981223
Docket: IMM-4605-97
Ottawa, Ontario, the 23rd day of December 1998
Present: The Honourable Mr. Justice Pinard
Between:
Gheorghe BIRSAN
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of October 9, 1997, by the Convention Refugee Determination Division, which determined that the applicant is not a Convention refugee, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19981223
Docket: IMM-4605-97
Between:
Gheorghe BIRSAN
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
I. The applicant claimed refugee status against Romania, alleging that he had a well-founded fear of persecution for reasons of membership in a particular social group, homosexuals. The Refugee Division was of the opinion that the applicant is not a Convention refugee, holding that he did not have an objective fear of persecution.
II. Even on the assumption that the applicant may have been a victim of persecution when he was in Romania (see Surujpal v. M.E.I. (1985), 60 N.R. 73 (F.C.A.)), the issue is whether the Refugee Division was justified in finding that due to the change in circumstances, the applicant had not established that there was a reasonable chance that he would be persecuted if he were returned to Romania.
III. It is worth quoting the following passage from the panel's decision:
[TRANSLATION]
With respect to the situation of homosexuals in Romania today, he said that the same problems remain. As for the passing of the new provisions of article 200 of the Romanian Penal Code and their enactment in November 1996, the claimant testified that although there is a new article in the Act, it is ignored by the police.
. . .
The claimant fears returning to Romania because he is homosexual and because he has failed to report once a week to the police station since October 1991.
According to the documentary evidence . . . it is said that [TRANSLATION] "the Senate's version criminalizes only homosexual relations taking place in public or likely to cause a public scandal". That evidence includes an article from the newspaper Le Monde . . . that says that [TRANSLATION] "according to a number of non-governmental organizations, the Romanian prisons are not believed to be holding anyone convicted under that article (article 200 of the Romanian Penal Code) at the present time".
The same documentary evidence also includes two other documents attesting to the amendments to article 200of the Romanian Penal Code.
Furthermore, another document . . . indicates that on April 15, 1997, a representative of the Helsinki Committee in Bucharest said that in November 1996, President Iliescu had ratified the Act passed in September 1996 by the Romanian Parliament on the amendments to article 200 of the Penal Code. The representative of theHelsinki Committee in Bucarest added that the new provisions of the Penal Code were published in the official gazette on November 14, 1996, and came into force the same day.
The claimant was also confronted with the documentary evidence . . . on the human rights organizations operating in Romania. The claimant replied that those organizations did not know what was going on in Romania because the police does not allow anyone to talk about it.
After analysing the written argument submitted by counsel for the claimant and reviewing all the documentary evidence filed in the record, the panel is of the opinion that the claimant is not a "Convention refugee" due to the fact that there is no one in prison in Romania for homosexuality and in view of the amendments to article 200 of the Romanian Penal Code. The panel considers the documentary evidence to which it referred to be credible and gives preference to that evidence over the body of evidence presented by the claimant.
IV. It thus appears that the panel relied on the documentary evidence establishing that according to a number of non-governmental organizations, the Romanian prisons were not holding anyone convicted under the relevant new provisions of the Romanian penal code at the time. Moreover, after confronting the applicant with that evidence, the panel was simply told that the human rights organizations do not know what the real situation is. In light of the fact that the applicant did not submit any evidence showing that homosexuals are imprisoned under the new amendments to the Romanian penal code, I am of the view that it was entirely open to the panel to prefer the relevant documentary evidence to his testimony (see M.E.I. v. Zhou (July 18, 1994), A-492-91). It is certainly not unreasonable to conclude that the mere existence of a law prohibiting homosexuality in public cannot prove, if it is not enforced, that homosexuals are persecuted.
V. In the result, the application for judicial review is dismissed. The parties acknowledge that there is no question here to be certified.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
December 23, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4605-97
STYLE OF CAUSE: GHEORGHE BIRSAN v. MCI
PLACE OF HEARING: MONTRÉAL, QUE.
DATE OF HEARING: 1-DEC-1998
REASONS FOR ORDER OF PINARD J.
DATED 23-DEC-1998
APPEARANCES:
MICHELLE LANGELIER
FOR THE APPLICANT
JOSÉE PAQUIN
FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHELLE LANGELIER
FOR THE APPLICANT
JOSÉE PAQUIN
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada