Date: 20031120
Docket: IMM-6309-02
Citation: 2003 FC 1369
Toronto, Ontario, November 20th, 2003.
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
BLEDAR TORO
MANJOLA TORO
JUXHINA TORO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench, but written and
edited for clarity and precision)
von FINCKENSTEIN J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated November 19, 2002, in which the Board found that the applicants were neither Convention Refugees nor Persons in Need of Protection.
[2] The principal applicant, Bledar Toro, is a 31- year old man from Albania who claims that he was persecuted by the ruling Socialist Party (SP) due to his membership in the Democratic Party (DP) and due to his membership in two social groups: (1) individuals persecuted by past governments and (2) his family, which was has a history of political activism in Albania. His wife, Majola Toro, and daughter, Juxhina Toro, base their claims on those of the principal applicant.
[3] In lengthy reasons, the Board found that the principal applicant lacked a well-founded fear of persecution due primarily to the fact that it disbelieved that he was an active political figure in the country. Specifically, the Board found several identity documents and newspaper articles provided by the applicant to be inauthentic. It also found that the principal's mother had returned to Albania. It therefore held that his mother's return to Albania undermined his argument that he would face persecution based upon family membership if returned to the country.
[4] This application must succeed as the Board committed a reversible error. It found on pages 4 and 25 of the tribunal record that the applicant's mother had returned to Albania. On page 26 it then stated: "Given the principal claimant's allegation that the entire family was threatened with death, the panel finds that the mother's action in returning to, and remaining in Albania serve to undermine the principal claimant's allegation that he would be persecuted on the basis of family membership. Accordingly, the panel finds that the principal claimant's fear of persecution on this basis is not well-founded".
[5] The fact is that there is absolutely no evidence on the tribunal record that the principal claimant's mother returned to Albania. In his affidavit the applicant claims that she returned to the U.S.
[6] Be that as it may, the Board cannot make a finding on the basis of no facts adduced before it and then use such finding to impugn the credibility of the principal claimant. This is a clear violation of procedural fairness.
[7] Consequently, pursuant to s.18.1(4) of the Federal Court Act this application for judicial review is allowed. The decision of the Board is vacated and the matter is being referred back to the Board for reconsideration by a differently constituted panel.
ORDER
THIS COURT ORDERS that:
This application is allowed for the reasons stated. The matter is referred back to the Tribunal to be reheard by a differently constituted panel.
" K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6309-02
STYLE OF CAUSE: BLEDAR TORO
MANJOLA TORO
JUXHINA TORO
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 19, 2003
REASONS FOR ORDER
AND ORDER : von FINCKENSTEIN J.
DATED: NOVEMBER 20, 2003
APPEARANCES:
Mr. Daniel L. Winbaum FOR THE APPLICANTS
Mr. Stephen Jarvis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Daniel L. Winbaum FOR THE APPLICANTS
Barrister & Solicitor
Windsor, Ontario
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20031120
Docket: IMM-6309-02
BETWEEN:
BLEDAR TORO
MANJOLA TORO
JUXHINA TORO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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