Cekani v. Canada (Minister of Citizenship and Immigration), 2003 FC 1167

Date: 20031007

Docket: IMM-4869-02

Citation: 2003 FC 1167

Ottawa, Ontario, this 7th day of October, 2003

Present:           The Honourable Madam Justice Heneghan                                      

BETWEEN:

                               NAJADA CEKANI, REINALD CEKANI, LUAN TELKIU,

LUDMILLA TELKIU, ALBJONA TELKIU and DEVIS CEKANI

                                                                                                                                                      Applicants

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Najada Cekani, Devis Cekani, Reinald Cekani, Luan Telkiu, Ludmilla Telkiu and Albjona Telkiu (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated August 30, 2002. In that decision, the Board found that the Applicants were not Convention Refugees.

[2]                 The Applicants are citizens of Albania. Mr. Luan Telkiu and Ms. Ludmilla Telkiu are married, and they are the parents of Nadjada Cekani and Albjona Telkiu. Ms. Najada Cekani is married to Mr. Devis Cekani; they are the parents of Reinald Cekani.

[3]                 The Applicants alleged a well-founded fear of persecution based on their political opinion and their membership in a particular social group, that is family members of political activists. Mr. Luan Telkiu, Ms. Najada Cekani and Mr. Devis Cekani are members of the Legality Party ("LP"). That is an opposition party to the government ruling Albania. The adult Applicants claimed to have suffered several persecuting incidents, including detention by the police following participation in demonstrations against the government. In relation to the younger daughter Albjona, there was a claim concerning an attempted abduction by men who she believed to be police officers. The various persecutory events occurred over a period of some years, beginning in 1990 and ending in April 2000, with the attempted abduction of Albjona.

[4]                 The Applicants, with the exception of Devis Cekani, arrived in Canada on May 12, 2000. They initiated their claim for Convention refugee status on the following day. Mr. Devis Cekani arrived in Canada on January 30, 200l and made his refugee claim at that time. The hearing before the Board began on June 28, 2001 and continued on October 3, 2001.

[5]                 The Board accepted that Mr. Luan Telkiu, his daughter Najada Cekani and her husband Devis Cekani were LP members. It accepted that Mr. Talkiu and Ms. Cekani were detained and beaten by the police in 1997 and 1998. However, it did not find that they remained LP activists after 1999. Further, it did not believe that any of the Applicants were mistreated or threatened in 2000.

[6]                 The Board based its negative conclusion on documentary evidence which showed that the LP was essentially able to operate freely and that there had been some mistreatment of LP supporters in another part of the country, but since early 1999 such abuse had not been extensive and "significant violence is not currently occurring against LP supporters in Tirana". The Board also found that the documentary evidence indicated that for some vocal LP members, the mistreatment generally amounted to harassment, not persecution. In a few cases such outspoken members may have been physically abused but the Board noted that the Applicants lived in Tirana and not in the north of Albania where LP members were being more harshly treated, according to one documentary source.

[7]                 The Board made negative credibility findings against Mr. Telkiu, Ms. Cekani, and Mr. Cekani, as well as certain implausibility findings about the knowledge that the Board believed they should have held, as LP activists.    This information related to the imprisoned LP leader and the 1997 election.

[8]                 The disposition of this application depends upon the applicable standard of review. In Conkova v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 300 online: QL (F.C.T.D.), Justice Pelletier (as he then was) said that the standard of review to be applied to decisions of the Board was patent unreasonableness. At paragraph 5, he said:

The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193 The issue here is the CRDD's assessment of the evidence, a matter clearly within its mandate and its expertise. The view which the CRDD took of the evidence was one which could reasonably be taken, just as the opposing view could also reasonably be taken. The evidence, as is so often the case, is ambiguous and equivocal. Some elements support the applicants' position, others undermine it. The CRDD's task is to consider all the elements (which does not require that specific mention be made of every piece of evidence which is reviewed) to weigh it and to come to a conclusion. As long as its conclusion is not one which is wrong on its face, it is not patently unreasonable. Canada (Director of Investigation and Research, Competition Act) v. Southam Inc . [1997] 1 S.C.R. 748, (1996) 144 D.L.R. (4^th). ...

[9]                 In the present case, the Board preferred the documentary evidence and accorded it greater weight than the Applicants' testimony and other evidence tendered by them. This preference was within the mandate of the Board, as the Court found in Zvonov v. Canada (Minister of Employment and Immigration) (1994), 28 Imm. L.R. (2d) 23 (F.C.T.D.).

[10]            Although another decision-maker may have rendered a different conclusion on the evidence submitted, I am not persuaded that the Board's decision here is unsupported by the evidence or is otherwise patently unreasonable. There is no basis for judicial intervention in the Board's decision here and the application for judicial review is dismissed. There is no question for certification arising.

                                                  ORDER

This application for judicial review is dismissed. There is no question for certification arising.

                                                                                           "E. Heneghan"

                                                                                                           J.F.C.

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-4869-02

STYLE OF CAUSE: NAJADA CEKANI ET AL v. MCI

PLACE OF HEARING:                                   TORONTO

DATE OF HEARING:                                     AUGUST 7, 2003

REASONS FOR ORDER

AND ORDER:          HENEGHAN J.

DATED:                      OCTOBER 7, 2003

APPEARANCES:                                             

MARIO BELLISSIMO

FOR APPLICANTS

MATINA KARVELLAS

FOR RESPONDENT

SOLICITORS OF RECORD:

                                     Ormston, Bellissimo and Younan

Barristers and Solicitors 900-1000 Finch Ave. W.          Toronto, ON M3J 2V5

Tel:416-787-6505

                                                                             Fax:416-787-0455       

FOR APPLICANTS                

Morris Rosenberg

Deputy Attorney General of Canada

FOR RESPONDENT