Date: 20031010
Docket: IMM-4599-02
Citation: 2003 FC 1179
Ottawa, Ontario, this 10th day of October, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
AGRON LUZI and MIKAELA KAPLLANI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FACTS
[1] Mr. Agron Luzi and Ms. Mikaela Kapllani (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated August 20, 2002. In its decision, the Board found that the Applicants were not Convention refugees.
[2] The Applicants are married to each other. They are citizens of Albania and base their claims for Convention refugee status in Canada on their political opinion and membership in a particular social group, that is family members of those persons targeted by the state because of political opinion. The male Applicant fears the Socialist Party which has been the ruling party in Albania since 1997 and controls the State Police Force.
[3] The male Applicant is a supporter of the monarchy and a member of the Legality Party (the "LP"). He alleged a number of persecutory incidents going back to 1997. His claim was based on political opinion, as a member of the LP. The female Applicant alleged that she fears a return to Albania because of her membership in her husband's family.
[4] The male Applicant testified that as a recruiter for the LP, he would visit universities and other schools to talk about the monarchy and the LP platform. He claimed that he was arrested, threatened and beaten after participating in a rally for King Zog, in July 1997, prior to the national election. He claimed that he acted as an observer in the 1997 election.
[5] The male Applicant testified that in September 1998, he participated in a demonstration with LP leaders condemning the murder of Azem Hagdari. He said that he was not involved in occupying government buildings. After the demonstration, certain members of his family were arrested. He was arrested later, as he had been able to flee temporarily, on September 21, 1998. He was detained for three days and beaten by police. He attended a military hospital for his injuries. One witness before the Board testified about seeing him in the hospital on September 24, 1998, in an injured state.
[6] In November 1999, the male Applicant was again detained and beaten by the police, together with his brother, after participating in a protest by LP members against the unfair prosecution of King Zog in absentia. On January 20, 2000, he was arrested again and charged with causing public disorder. He was released on condition that he not leave Tirana and report to the police twice a week. He reported to the police twice a week for approximately four months.
[7] On May 5, 2000, the male Applicant testified that he was with his cousin, also a member of the LP, when his cousin was killed by the police. The police had chased them by car and shot the cousin. The Applicant claimed that he was able to jump out of the car and escape. He informed the LP of his cousin's killing and the LP initiated a written complaint to the Court of Tirana. The Applicant claims that complaint was not considered.
[8] The male Applicant further claimed that on May 20, 2000, the police came to his house and accused him of holding guns illegally. The police searched the house, and took certain documents, including photographs of the male Applicant with King Zog. The male Applicant claims that the police then beat the female Applicant who was pregnant at that time and told her that if her husband did not stop his LP activities, they would kill him as they had killed his cousin.
[9] The Applicants left Albania on May 28, 2000 and arrived in Canada on June 2, 2000. They began their refugee claims on June 5, 2000. Their hearing before the Board took place between November 2001 and May 2002. The Board's negative decision is dated August 20, 2002.
[10] In its decision, the Board accepted that the male Applicant was an LP member but it concluded that the Applicants had failed to establish that there was a reasonable chance that they would be persecuted if returned to Albania, as there was insufficient credible evidence that the male Applicant would be a target of Socialist Party agents, due to his political profile.
[11] The Board found the male Applicant not to be a credible witness based primarily on certain implausibility findings. First, it found it implausible that the Applicants would leave certain identity documents in a taxi and then not call to see if they could be retrieved. Second, it found that the male Applicant's explanation as to why they did not claim refugee status at the airport and waited until the following Monday, was implausible. Third, it did not find plausible the male Applicant's account of being fired from his public sector job for political reasons. Next, while the Board accepted that the male Applicant's cousin was killed, it did not find it plausible that the male Applicant was with his cousin when this occurred. Finally, the Board presented an alternative finding, that even if the male Applicant had been found credible, the documentary evidence about the current political environment in Albania did not indicate that the Applicants' claim of persecution, based on the male Applicant's political opinion, was objectively well founded.
APPLICANTS' SUBMISSIONS
[12] The Applicants submit that the Board's reasons are insufficient in explaining why it found the male Applicant not credible and that its conclusions were based on a misapprehension of the evidence or on speculation. They also say that the Board erred in ignoring evidence in reaching its conclusion that there was no objective basis for their claim.
[13] The Applicants argue that the Board was obliged to provide reasons that are "clear, precise and intelligible": Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (C.A.) (QL), and the Board when giving reasons that cast doubt on a claimant's credibility must do so in "clear and unmistakable terms": Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.).
[14] The Applicants submit that in finding the male Applicant to be a non-credible witness, the Board did not identify any inconsistencies or contractions in his evidence, in its reasons. The Applicants say that throughout the hearing there were some inconsistencies for which the male Applicant gave explanation. Since none of these inconsistencies are identified by the Board, the Applicants argue that this silence means that the Board accepted the explanations or found that they were not central to the claim.
[15] The Applicants submit that the Board's finding that the male Applicant was not a credible witness was based primarily on erroneous implausibility findings. They argue that the Board made three implausibility findings that were material to its conclusion on credibility:
1. That the smuggler who arranged for the Applicants to enter Canada told them to wait before starting a refugee claim and then go to a particular street corner in Toronto, as this was an area where many Albanians lived. This explains why the Applicants did not make their Convention refugee claim at the airport on Friday, but waited until the following Monday.
2. The male Applicant lost his job in the municipal government because of his political involvement.
3. The male Applicant's account of the killing of his cousin and his own escape from the police in May 2000.
[16] The Applicants argue that the Board's conclusion about the failure to claim refugee status at the airport is unreasonable and shows that the Board speculated and ignored the evidence from the male Applicant. As for the job dismissal, the Applicants say that the Board again misconstrued the evidence when it found that the Socialist Party gave the male Applicant his job in 1996. The documentary evidence established that this Party did not take power in Tirana until 1997. The Applicant was employed in 1996 prior to the Socialist Party gaining power.
[17] Further, the male Applicant's "position within the government" was as a garbageman. He testified that while his job was considered a good one because it was fairly well paid, it was not considered an important job. The Applicants say that here, the Board again misapprehended the evidence when it characterized his employment as holding a "position in the government" as stated in its reasons, as his was a non-important municipal job. It was plausible that those in higher positions would be removed first, leaving persons in his situation until later.
[18] The Applicants submit that the May 5, 2000 incident where the male Applicant's cousin was killed by the police, the subsequent police search of their house and the police beating of the female Applicant, were the central element to the claim. They say that the Board misapprehended and ignored the evidence before them concerning these incidents, in particular, the escape from the car. The Board's implausibility finding was a perverse finding of fact. The Applicants argue that there was no evidence that the car was "careening down the street" at the time the Applicant jumped out.
[19] The Applicants further argue that the Board erred in finding that the witness, Athina Pulaj called by the Applicants to address the male Applicant's involvement in the LP and his attendance in the hospital in September 1998, provided evidence of no probative value, given that it found the Applicants' evidence not to be credible. The Applicants argue that the witness provided information that was independent of the Applicants' evidence. To simply dismiss her evidence as entirely non-probative, on the basis of its view of the Applicants' evidence, is erroneous.
[20] Finally, the Applicants' argue that the Board made contradictory conclusions relative to the male Applicant's political profile. The Board never stated that it did not believe the male Applicant's evidence of detention and beating. The Board did not refer to the fact that the Applicants alleged that the female Applicant was beaten while pregnant. The Applicants say that this is evidence that the male Applicant was a target and directly contradicts the Board's conclusion that since he did not hold a high position in the LP, he was not a target of the Socialist Party.
[21] The Applicants say that while there is some documentary evidence to support the Board's conclusion that LP members were not subject to violence, the Board did not mention other evidence that stated that violence is still a significant factor.
RESPONDENT'S SUBMISSIONS
[22] The Respondent argues that the Board made credibility and plausibility findings that were reasonably open to it on the record. The Board did not err in law and there was no evidence that it refused to consider, ignored or made an erroneous finding with respect to any evidence. The Respondent says that the standard of review is that set out in section 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7. The Court should not intervene unless the Board based its decision on an erroneous finding of fact made in a perverse or capricious manner, or without regard to the material before it.
[23] The Respondent relies on Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 (F.C.A.) leave to appeal to the S.C.C. refused, [1995] S.C.C.A. No. 102 (QL) and says that the standard of review is patent unreasonableness where the Board bases its determination on the ground that a claimant's fear of persecution is not well-founded.
[24] The Respondent argues that the Board was entitled to draw the implausibility findings that it did and to use its sense of rationality in assessing the claim: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[25] The Respondent further argues that the Board provided reasons related to its adverse credibility findings in "clear and unmistakable terms" as required by Hilo, supra. The Board clearly stated what parts of the evidence it found non-credible and gave clear explanations for such conclusions.
[26] The Respondent argues that the reasons of the Board must be right in their entirety and with this in mind, it is clear that the Board understood the facts of the Applicants' claims and found the evidence insufficient to support a positive determination.
[27] Alternatively, the Respondent argues that the Board was not required to examine the issue of the male Applicant's credibility in a more detailed manner because it was not the determinative issue in deciding the claim. The reasons show that the Board assumed the veracity of the event described by the Applicants, yet find that they had not established their claim.
[28] Finally, the Respondent argues that the onus is on the Applicants to establish, on a balance of probabilities, that there was a serious possibility that they would face persecution in Albania and until they are declared Convention refugees, that burden remains with them. In this case, the Applicants did not discharge this burden.
ANALYSIS
[29] In my view, the Board in this case found implausibilities with the Applicants' allegations which were "so unreasonable", in the language of Aguebor, supra, so as to warrant the intervention of this Court. The Applicants have persuaded me that the Board indeed misconstrued and, alternatively, ignored much of the male Applicant's testimony in reaching its implausibility findings.
[30] The Board made non-credibility findings in this case, in the absence of the factual basis or common sense rationalization to support such findings. To outline one example, the reasons of the Board indicate that it misconstrued the male Applicant's testimony relative to the car chase where his cousin was killed. The Applicant testified that the car had slowed down after the cousin was shot and the car then went off the road and into a trench where there was "soft earth" not pavement. The Applicant then jumped out. He also testified it was dark at this time and he was able to run away from the police as they moved towards the car. He could only speculate as to why the police did not follow him and stated that it was possible that they did not see him. The transcript shows that his testimony relative to this incident was consistent, direct and provided reasonable explanation. However, the Board characterized this incident in its reasons at page 6, as follows:
The panel believes that the claimant's cousin was killed, but the panel does believe that the claimant was with him at the time of the accident. The panel finds that the testimony provided by the claimant is neither plausible or credible. The panel does not believe that the claimant would be in the car with his cousin, be speeding, refuse to stop the car when instructed to do so by the police, have the police chase them, and then while careening down the street, be able to jump out of the car and not be noticed by the police who were pursuing the car and not be chased either by foot or car by the police.
[31] From my review of the transcripts, the Applicants' submissions challenging other plausibility findings of the Board are persuasive. The record shows the Board either misconstrued the evidence before it or ignored it. This is a reviewable error, as stated by Justice Gibson in Yuksalir v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 180 (T.D.) (QL) where he said at paragraph 10, as follows:
...I am satisfied that it is appropriate for a reviewing Court to interfere where it is persuaded that the analysis of the CRDD in support its assessment of credibility is so flawed or incomplete that it cannot be determined with any degree of certainty that the assessment is other than perverse or capricious or made without regard to the evidence before it. I find that to be the case here. The CRDD, at the very least, distorted the applicant's testimony before it. It ignored relevant elements of the testimony before it to such a degree as to lead the Court to conclude that it very well might not have had regard to the totality of the evidence.
[32] Finally, the Board purported to make an alternate finding, that is even if the male Applicant's evidence was credible, then the political climate in Albania today indicated that the fear of persecution was not objectively well-founded. However, in my opinion this finding cannot be supported from the Board's improper, negative credibility findings. It is not possible to determine to what degree the Board's misconstrual of the factual evidence tainted its view of the objective basis of the Applicants' claim.
[33] In fact, the Board said that its views concerning the credibility of the male Applicant affected its assessment of the objective basis of the claim. This appears from the Board's statement that it was not willing to view the testimony of a witness called on behalf of the Applicants as having any probative value in establishing the objective basis of the claim "given that" it had found the Applicants' not to be credible. The evidence adduced was corroborative of the Applicants' claim and was not merely dependent upon the male Applicant's evidence. The Board did not engage in any analysis of why it found the witness' evidence not credible.
[34] As occurred in Hajai v. Canada (Minister of Citizenship and Immigration) (2000), 192 F.T.R. 141, the Board here misapprehended the evidence before it in reaching its conclusions related to implausibility. Its findings in other areas are therefore suspect as well. As stated by Justice Pelletier, as he then was, in Hajai, supra, at paragraph 14:
...There comes a point at which the sheer number of errors, whether material or not, leaves one with little confidence in the soundness of the other conclusions reached by the Tribunal. It is clear that the CRDD based its decision on findings of fact made without regard to the material before it. For that reason, the decision must be set aside and the matter remitted to another panel for determination.
[35] In light of the foregoing, this application for judicial review is allowed. The matter will be remitted to a differently constituted panel of the Refugee Protection Division, for redetermination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Refugee Protection Division for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4599-02
STYLE OF CAUSE: AGRON LUZI ET AL v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: AUGUST 6, 2003
REASONS FOR ORDER AND
ORDER: HENEGHAN J.
DATED: OCTOBER 10, 2003
APPEARANCES:
JACK C. MARTIN
FOR APPLICANTS
PAMELA LARMONDIN
GORDON LEE
FOR RESPONDENT
SOLICITORS OF RECORD:
JACK C. MARTIN
Barrister and Solicitor
Refugee Law Office
206-375 University Avenue Toronto, ON M5G 2G1
Tel:416-977-8111
Fax:416-601-9255
FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
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