CITIZENSHIP AND IMMIGRATION
Status in Canada
Convention Refugees
Judicial review of decision by Refugee Division of Immigration and Refugee Board (Tribunal) applicants not Convention refugees nor persons in need of protection— Applicants citizens of Romania claiming well‑founded fear of persecution based on Roma nationality, political opinion, membership in particular social group—First issue whether applicants entitled to be heard by panel consisting of more than single member—Refugee claims filed in 2000— Immigration and Refugee Protection Act (IRPA) coming into force June 28, 2002—Single‑member panel ruling compelled hearing by single‑member panel as no substantive evidence adduced at April 24, 2002 pre‑hearing conference at which applicants not present—Applicants failing on this issue— Filing of Personal Information Form (PIF), holding of pre‑hearing conference under Immigration Act, 1976, not meeting requirements under IRPA, s. 191 such that proceeding continued under former Act—Applicants not accepting tribunal’s invitation to adjourn hearings in order to enable them to make request to Chairperson of Board for hearing by three‑member panel—Second issue standard of proof in respect of IRPA, s. 96, arising from manner tribunal expressed conclusion not satisfied on balance of probabilities serious possibility of persecution—Tribunal expressing itself sufficiently, not imposing inappropriate burden on applicants —Conveying essence of appropriate standard of proof, that is, combination of civil standard to measure evidence supporting factual contentions, and risk of persecution gauged by not proving persecution probable but by proof reasonable chance or more than mere possibility claimant would face persecution —Third issue concerning tribunal’s exclusion of Mr. Florea under United Nations Convention Relating to the Status of Refugees, Art. 1F(b)—Tribunal finding crimes for which Mr. Florea convicted constituted serious non‑political crime within meaning of Art. 1F(b)—Record showing fine of 7 billion plus lei integral part of Mr. Florea’s sentence for crime committed which would be economic crime falling within description of serious non‑political crime under Convention, Art. 1F(b)— Legitimate criminal liability including payment of fine, restitution in lieu of imprisonment—No monies owing to Romanian state, Romanian authorities not seeking to recoup from applicants monies owed to them—Tribunal’s finding on exclusion in respect of Mr. Florea set aside—Setting aside of tribunal’s decision on Mr. Florea’s exclusion not dispositive of judicial review application as tribunal’s decision on inclusion in respect of Mr. Florea stands, not having been challenged—Fourth issue relating to tribunal’s finding of non‑persecution of Mrs. Florea, infant child—Tribunal not erring in not recognizing Mrs. Florea’s gender claim on account of rape—Basis of finding that rape occurred because alone, vulnerable, not because a woman—Tribunal finding Mrs. Florea, son, whose claim also based on Roma ethnicity, not having well‑founded fear of persecution when leaving Romania—Based on finding past persecution ceased, not on finding of no past persecution—Application dismissed as tribunal’s finding all applicants found not to be included as Convention refugees stands—Tribunal’s finding Mr. Florea excluded from application of Convention set aside—United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can T.S. No. 6, Art. 1F(a),(b)—Immigration Act, 1976, S.C. 1976‑77, c. 52—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 191.
Florea v. Canada (Minister of Citizenship and Immigration) (IMM‑5443‑04, 2005 FC 1472, Lemieux J., order dated 3/11/05, 22 pp.)