Date: 20060314
Docket: IMM-2631-05
Citation: 2006 FC 330
BETWEEN:
HYSEN LEVANAJ
SANIE LEVANAJ
Applicants
- and -
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
O’KEEFE J.
[1] This is an
application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated April 6, 2005, which determined that the applicants are
neither Convention refugees nor persons in need of protection.
[2] The
applicants seek an order setting aside the decision and referring the matter
for redetermination by a differently constituted panel of the Board.
Background
[3] The
applicants are an elderly married couple. They fled their country of
nationality, Albania, because
they were persecuted by state authorities for the political activism and
anti-Communist, pro-Monarchist views of their family, in particular, of their
son Eduard. Eduard left Albania and came to Canada in March
2001, after having been detained and beaten by the police on numerous occasions
for his political activities with the Legality Movement Party (LMP or LP), a
party in favour of a constitutional monarchy. Eduard’s claim for refugee status
was rejected by the Board on October 6, 2003 because the Board found that he
was not credible, he was only an ordinary member of the LP, and the documentary
material did not corroborate that members of the LP other than high-level leaders
would face a serious possibility of persecution.
[4] By order
dated October 28, 2004, this Court allowed the application for judicial review
of Eduard’s negative refugee determination and ordered that the claim be
remitted for redetermination by a differently constituted panel. Justice
Mactavish for the Court found that the Board’s findings with respect to
Eduard’s credibility and the plausibility of his claim were simply not
supported by the evidence and were sufficiently central to the Board’s analysis
to require that the decision be set aside.
[5] The
applicants in the present application came to Canada in October
2002 and claimed refugee protection. In the narrative to their Personal
Information Form (PIF), they adopted Eduard’s reasons for fleeing Albania and
emphasized that Eduard was an executive member of the LP and a founder of a
trade union.
[6] The
applicants related the following additional information in their PIF narrative.
In April 2001, police officers came to their home in Lac looking for Eduard.
When the applicants told the police that their son had left the country and
they knew nothing further, the police beat them. In August 2001, the applicants
went with their nephew to the town of Dukas to find out what was
happening with their ancestral property, which had been confiscated during the
Communist regime. They approached the local authorities and asked for the
return of their land. A government official called in the police, who detained
and beat the applicants. The male applicant was so badly beaten that he had to
be hospitalized. In January 2002, the female applicant was attacked by
socialist youths while returning home from shopping. In May 2002, prominent
socialists fired shots at the applicants’ apartment. The male applicant reported
this incident to the police, but the police roughed him up and demanded that he
stop making false accusations against upstanding citizens.
[7] The
applicants entered Canada on a visitor visa. In Canada, they lived
in the same home as their son Eduardo. The applicants’ refugee claim was heard
on June 25, 2004. By decision dated April 6, 2005, the Board refused their
claim.
[8] An
unfortunate development to this story occurred after the Board rendered its
decision on the applicants’ claim. On April 15, 2005, the applicants received
notice of this decision by way of a letter. Their son Eduard read the decision
that day, and he became depressed and upset. He told his parents that the Board
had for the second time misunderstood the basis of their refugee claim. The
next day, on April 16, 2005, at approximately 5 a.m., Eduard told his parents
that he was unwell. Paramedics were immediately called in to assist, but
despite their efforts, Eduard was pronounced dead in their home. At the time of
his passing, the Board had yet to reschedule a hearing to redetermine his
refugee claim.
[9] This is the
judicial review of the Board’s decision which refused the applicants’ claim.
Reasons for
the Board’s Decision
[10] The Board
stated that the determinative issue is whether the applicants have established
an objective basis for their fear of persecution because of their own and their
son’s affiliation with the LP.
[11] The Board
found that, on a balance of probabilities, the applicants’ son was an ordinary
member of the LP. The Board also found that the male applicant is affiliated
with the LP because of his son’s membership in that party, and that the family
as a whole is anti-Communist and pro-Monarchist.
[12] The Board
found that the documentary evidence did not support the applicants’ allegation
that people at their level of the LP or pro-monarchists are persecuted. The
Board preferred the documentary evidence over the applicants’ evidence because
the documentary evidence was gathered by reputable third-party agencies with no
interest in the outcome of this claim.
[13] The Board made the following observations
from the documentary evidence:
1. Albania’s human rights record remained poor in some areas, as
police beat and otherwise abused suspects, detainees and prisoners.
2. There
is no widespread persecution of those opposed to the government; there are no
confirmed cases of detainees being held strictly for political reasons; and
there is currently no systematic state persecution of members of opposition
parties.
3. Although
in the past, LP supporters have had problems with the authorities, there is no
recent credible documentary evidence that LP supporters have been subjected to
maltreatment or violence simply on account of their political opinion or
because they have relatives in the party. The Board noted that the leader of
the LP, Ekrem Spahiu, had been arrested on September 24, 1998, on charges of
carrying out violent acts against state institutions.
4. Only
the active ranks or leadership of the party may be subjected to “harassment”
for their political opinion.
[14] Based on the
preponderance of the documentary evidence, the Board found that the applicants
did not suffer the attacks alleged in their PIF narrative. Therefore, the Board
concluded that the applicants would not face a serious possibility of
persecution in Albania because of their political profile, or anti-Communist
or pro-Monarchist views.
[15] The Board
also concluded that the applicants are not persons in need of protection, as
they do not have the political profile alleged such that their removal to Albania would
subject them personally to a risk to their lives or a risk of cruel and unusual
treatment or punishment. Further, there were no substantial grounds to believe
that their removal to Albania would subject them
personally to a danger of torture.
Issues
[16] The applicants, in their
memorandum, submitted the following issues for consideration:
1. Was
the Board’s assessment of the country conditions made in a perverse and
capricious manner and without regard for the evidence before it?
2. Was
the Board’s assessment of the applicants’ credibility made in a perverse and
capricious manner and without regard for the evidence before it?
3. Did
the Board err in finding that the applicants had not corroborated their
evidence with documents and therefore the alleged events of past persecution
had not taken place?
4. Was
the Board’s decision influenced by the previous decision of another Board panel
made in respect of the claim of the applicants’ son, and did the Board err in
failing to give notice that it was taking this decision into its consideration
such that the applicants did not know the case they had to meet?
5. Was
there a reasonable apprehension of bias in that there are strong indications
that the Board’s decision was influenced by the decision of another Board panel
in respect of the claim of the applicants’ son?
Applicants’
Submissions
[17] The
applicants submitted that the evidence in their son’s PIF narrative accorded
him a profile that is much more substantial than that of an ordinary member of
the LP. In his narrative, Eduard described in great detail his involvement with
the Democratic Party at different periods of his life, his role as one of the
founding members of the first independent miners union in Albania, his role as
a member of the executive committee of the LP in Lac, and how these various
associations and his political activism resulted in many instances of arrest,
detention and physical assault at the hands of agents of the state. It was
submitted that the Board did not provide any reasons as to why it discounted
the son’s status as an executive member of the LP or his other political roles,
and in so doing, the Board acted with perverse and capricious disregard for the
evidence before it. The applicants submitted that the level of their son’s
participation in the LP was a determinative issue, because the Board found that
there was no serious possibility of persecution for ordinary members of the LP.
[18] The applicants
submitted that the Board’s decision contains phrases which are very similar to
those found in the Board’s prior decision on their son’s claim. The applicants
submitted that the parallel phrasings are strong indications that the Board
relied on the prior decision without conducting its own independent analysis.
[19] The
applicants submitted that they were not given notice that the Board would take
into consideration the prior decision in respect of their son, and as a result,
they did not have full knowledge of the case they had to meet. If they had been
given such notice, they would have had the opportunity to make known to the
Board that the prior decision of the Board had been quashed by this Court on
judicial review. It was further submitted that this Board must be deemed to
have knowledge of decisions of this Court that set aside one of the Board’s
decisions. A claimant cannot be faulted if the Board relieed upon a previous
decision of the Board without ascertaining whether it had been quashed by this
Court.
[20] The
applicants submitted that as in this case, where the earlier decision is not
formally in evidence before the Board, where the Board appears to have resorted
to that decision covertly, and where the earlier decision was quashed by this
Court several months before the decision at bar was made, the Board had made a
patently unreasonable decision and acted in bad faith. The applicants submitted
that the decision of Dinehroodi v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 758 is precisely on point. In
that case, Justice Rouleau determined that it was patently unreasonable for the
Board to rely upon another panel’s adverse credibility finding in support of
its own adverse credibility finding, even though the claimant knew that the
previous finding was being admitted into evidence and had an opportunity to
make representations with respect to that evidence. It was submitted that the
jurisprudence makes it clear that the Board’s reliance on the findings of
another panel must be “limited, careful and justified”.
[21] The
applicants submitted that the Board’s analysis was oversimplified because it
was limited to considering whether persons affiliated with the LP are
persecuted, and ignored the complex political history set out in the
applicants’ son’s narrative.
[22] The
applicants submitted that the documentary evidence contradicted the Board’s
conclusion that:
. . . there is no recent
credible documentary evidence before me that members, associates or supporters
of this [Legality] party have been subjected to maltreatment or violence simply
on account of their political opinion or because they have relatives among the
ranks of the party, as the principal claimant alleges.
It was
submitted that the documentary evidence showed that there are many instances in
which supporters of the opposition parties have been victimized by the police.
For instance, the excerpts cited by the Board in its reasons state that LP
supporters in the Shkoder and the Mat region, are subjected to physical abuse
and harassment from police.
[23] The
applicants further submitted that the Board selectively cited from the
documentary evidence and ignored passages which indicate that political
repression, recrimination and vengeance are very serious problems. It was
submitted that the documentary evidence refers to the arrest of the LP leader
and followers who protested the assassination of the Democratic Party
parliamentarian, Azem Hajdari. The applicants pointed out that these events
were specifically referred to in their son’s PIF narrative, as he was detained
and assaulted by police for protesting the unfair arrest and treatment of the
LP leader.
[24] The
applicants submitted that nowhere did the Board state that their testimony was
internally inconsistent or otherwise contradictory. The Board presented the
findings with respect to the applicants’ credibility in footnote 23 of the
decision. The Board faulted the applicants for failing to substantiate the key
elements of their story with corroborating documents, and concluded, “Given the
lack of documentary evidence, I conclude that the claimants were not subject to
attacks and beatings by the Socialists and the police as they allege”. It was
submitted that failure to produce supporting documentation cannot reflect
adversely on the applicants’ credibility in the absence of evidence which
contradicts the applicants’ testimony (see Miral v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 254 at paragraph 23
(T.D.) (QL)).
[25] The
applicants submitted that there is a reasonable apprehension of bias because
the Board based its determination on a negative decision in respect of the
applicants’ son.
Respondent’s
Submissions
[26] The respondent submitted that a review of the reasons
demonstrated that the Board’s finding that the applicants’ son was merely an
ordinary member of the LP is not central to the decision, as the problem with
the claim was the lack of an objective basis to the fear of persecution.
[27] The respondent submitted that the onus was on the applicants
to make the Board aware of any Federal Court decision, such as the decision
allowing the judicial review in respect of their son’s refugee claim. It was
submitted that the Board was entitled to have regard to the applicants’ son’s negative
refugee determination, given that the applicants stated in their PIF that they
were adopting the PIF of their son. It was submitted that the fact that the
applicants’ counsel did not give the Board notice of the Federal Court decision
does not vitiate the Board’s decision, since the Board operated with the
evidence it had before it at the time.
[28] The respondent submitted that the Board was correct to find
that a person of the applicants’ profile would not be targeted, as the
documentary evidence referred to “outspoken” persons as targets and the
applicants are not outspoken persons, but are simply affiliated with the LP
through their son.
[29] In response to the applicants’ argument that the Board
selectively quoted from the evidence, the respondent submitted that the Board
referred to the most relevant portion of the articles and it is unrealistic to
expect the Board to quote every piece of documentary evidence. The respondent
also submitted that it is open to the Board to prefer documentary evidence to
the applicants’ testimony.
Analysis and
Decision
[30] For the purpose of this
judgment, I propose to deal with the following issue:
Did the Board err in relying on a
previous decision of the Board in making its decision that the applicants faced
no serious possibility of persecution?
To answer this question, it must
first be determined whether the Board did, in fact, rely on a previous decision
of the Board, namely, the decision on the applicants’ son’s claim. The Board
did not specifically refer to or cite from a previous decision in its reasons,
nor did the Board give notice to the applicants that it was relying on the
previous decision. The applicants, however, contended that the Board covertly
based its decision on the previous decision, because there are parallel
phrasings between the two decisions, which were written by different panel
members. The applicants cited the following examples.
The decision with respect to Eduard
Levanaj contains this passage:
The panel finds the country documentation
does not support the claimant’s allegation that people at his level of the
Legality Party are persecuted for a Convention ground. This documentation was
gathered by reputable third-party agencies that do not have an interest in this
claim. (See application record, page 270.)
A parallel phrasing is found in the decision
with respect to the applicants, which states:
I find that the documentary evidence does
not support the claimant’s allegation that people at his level of the Legality
Party or pro-monarchists are persecuted for a Convention ground. This
documentation was gathered by reputable third-party agencies that do not have
an interest in the outcome of this claim. (See application record, page 12.)
The decision with respect to Eduard Levanaj states:
Based on the preponderance of the
documentary material, the panel finds, on the balance of probabilities, the
claimant did not suffer the attacks he alleges in his PIF. (See application
record, page 272.)
A similar passage is found in the decision with
respect to the applicants:
Based on the preponderance of the
documentary evidence before me, I find, on the balance of probabilities, that
the claimants did not suffer the attacks they allege in their PIF narratives. (See
application record, page 16.)
The decision with respect to Eduard Levanaj
makes the following finding:
Therefore, based on weighing all the
evidence, the panel finds, on the balance of probabilities, he was an ordinary
member of the LP in Albania. (See application record, page 272.)
The same finding was made in the decision with
respect to the applicants:
Based on the documents supplied by
counsel, I find on a balance of probabilities that the claimants’ son was an
ordinary member of the Legality Party. (See application record, page 12.)
[31] I am of the opinion
that because of the similarity of these statements, the Board’s decision
relating to the applicants’ son Eduard, was referred to and used in the
preparation of the decision relating to the applicants. At the commencement of
the hearing, the Board member gave no indication that the decision in Eduard’s
case would be used in the present case. The decision was not tendered in
evidence nor did the applicants know that it would be utilized.
[32] It must now be determined what is the effect of the Board’s use of a
prior decision in making credibility findings in another decision with
different applicants, without notifying the applicants that a prior decision is
being relied on.
[33] The applicants argued that it was a breach of natural justice for
the Board to rely on their son’s earlier decision without first giving notice
to the applicants that this decision would be used. The respondent submitted
that the Board was entitled to make use of the applicants’ son’s decision
because the applicants adopted the PIF of their son. However, the issue is
whether the Board should have told the applicants it was going to make use of
Eduard’s decision so as to allow the applicants to address the findings of that
decision.
[34] I agree with the applicants that the failure to apprise the
applicants of the intention to make use of Eduard’s decision to make
credibility findings for the applicants’ decision is a breach of the duty of
procedural fairness. This is particularly so since Justice Mactavish of this
Court found that the Board’s findings with respect to Eduard’s credibility and
the plausibility of his claim were simply not supported by the evidence, and consequently,
set aside the decision.
[35] The Board’s decision is therefore set aside and the matter is
referred to a differently constituted panel of the Board for redetermination.
[36] Because of my finding on this issue, I need not deal with the other
issues raised by the applicants.
[37] The parties shall have one week from the date of this judgment to
submit any proposed serious question of general importance for my consideration
for certification and a further three days for any reply.
“John
A. O’Keefe”
ANNEX
Relevant Legislation
Paragraph
95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
provides that refugee protection is conferred on a person who is determined
by the Board to be a Convention refugee or a person in need of protection.
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95. (1)
Refugee protection is conferred on a person when
. . .
(b) the Board
determines the person to be a Convention refugee or a person in need of
protection; or
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95.
(1) L'asile est la protection conférée à toute personne dès lors que, selon
le cas:
. .
.
b)
la Commission lui reconnaît la qualité de réfugié ou celle de personne à
protéger;
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Section 96
and subsection 97(1) define “Convention refugee” and “person in need of
protection” as follows:
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d'être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée:
a)
soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la
torture au sens de l'article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d'autres personnes
originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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