[1] The Kosmacaj family seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated June 3, 2003, wherein it was determined that they were not Convention refugees or persons in need of protection. The family had claimed a well-founded fear of persecution in Albania at the hands of Socialist Party ("SP") supporters and the police because of the political opinion of Mr. Kosmacaj as an active member of the Democratic Party (DP) and opponent of the SP government. Mrs. Kosmacaj and Samantha's claims were based on social group as family members of Mr. Kosmacaj. For the reasons that follow, I would dismiss the application.
[2] A member of a family persecuted under the Communist regime, Mr. Kosmacaj claimed that he joined the DP in 1991 and had been active ever since. He claimed to have received death threats connected with his work as an election observer in 1996. He was arrested during a peaceful protest in July 1997 and was held for one day and beaten by the police. He also claims that he was arrested, detained and beaten after the funeral of Azem Hajdari in September 1998. In September 1999, he was arrested again and warned not to continue to support the DP.
[3] Mr. Kosmacaj alleges that in August 2000, two people attempted to abduct his wife and that his home was partially destroyed in an explosion set by SP supporters in November 2000. They left Albania in December 2000 and arrived in Canada on December 9, 2000, where they claimed Convention refugee protection two days later.
[4] The Board found that Mr. Kosmacaj was not credible with respect to his subjective fear of persecution because of a number of omissions of significant details in his personal information form ("PIF"), together with inconsistencies and implausibilities in his oral evidence. It did not believe that Mr. Kosmacaj had spoken at DP meetings, nor that he had been bitten by a dog while in police custody, nor that his home had been blown up. It found that Mr. Kosmacaj did not have much knowledge of the DP platform, that he was not an active party member and, as such, would not have a political profile that might lead to him being targeted for persecution. In the absence of evidence to confirm that the family had remained in Albania after 1998, the Board rejected Mr. Kosmacaj's testimony about subsequent events.
[5] Based on those findings, the Board also found that the family would not be subject personally to a risk to their lives or to cruel and unusual treatment or punishment or to a danger of torture if they return to Albania.
ISSUES
[6] 1. Did the Board err in its credibility findings?
2. Did the Board err in its assessment of the objective element of well-founded fear of persecution by ignoring significant relevant evidence that contradicted its conclusions?
ARGUMENT AND ANALYSIS
1. Credibility
[7] The Kosmacajs submit that the Board erred in its credibility findings because it failed to take into account the difference between omissions of significant details central to a claim and omissions of insignificant details: Ahangaran v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 315 (T.D.); L. Waldman, Immigration Law and Practice at para. 8.30.
[8] Minor or irrelevant apparent inconsistencies should not be taken into account in assessing credibility. With respect to the explosion at his house, the claimant was consistent in his statements and was not contradicted by any evidence. His uncontradicted evidence should be considered credible: Yalinez v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 163 (F.C.A.).
[9] The Board's finding that Mr. Kosmacaj was not tortured as he claimed and that he added it as an embellishment flies in the face of the facts in the documentary evidence before it that indicated that police torture of opposition supporters was endemic. Similarly, the Board's refusal to believe that Mr. Kosmacaj was arrested and beaten after the funeral of Mr. Hajdari ignores the documentary evidence that confirms the arrest and ill-treatment of similarly situated persons.
[10] Further, the applicants argue that the Board's finding that nothing happened to Mr. Kosmacaj after 1998 is in error because Mr. Kosmacaj described persecution after 1998 in both the PIF narrative and oral testimony. His uncontradicted evidence should have been accepted.
[11] The respondent submits that there was no reviewable error in the Board's credibility findings. The findings were reasonably open to the Board on the record and were central to the claim because they related to Mr. Kosmacaj's membership and activities in the DP. His political profile and activities go the heart of the claim for protection.
[12] Mr. Kosmacaj failed to clarify contradictions and inconsistencies. It was reasonably open to the Board to find him not credible, and it was open to it to make adverse findings regarding credibility based on implausibility alone. The Board is in the best position to gauge credibility: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.); Leung v. Canada (Minister of Employment and Immigration)(1990), 129 N.R. 391 (F.C.A.); Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
Analysis
[13] The Board's credibility findings were based mainly on significant omissions in Mr. Kosmacaj's PIF and inconsistencies in his testimony. He had not mentioned public speaking activities that he claimed to have performed on behalf of the DP, nor an alleged incident of torture by dog bite. Both are significant, in my view. The Board's findings that these events never took place were not patently unreasonable, in my view, given that Mr. Kosmacaj testified, on the one hand, that the PIF was fully translated to him, and on the other, that he had included those details in preparing the PIF and the translator must have missed them.
[14] Mr. Kosmacaj had claimed in his PIF that part of his home had been destroyed by a "huge explosion", the precipitating event that led the family to flee to Canada. In his testimony before the Board he said that most of the house had been destroyed. In support of his claim he offered a letter from the local chairman of the DP party. The letter described Mr. Kosmacaj as a member of the party and polling station observer. No activities are described after September 1998. The letter mentions the breaking of windows and tiles at Mr. Kosmacaj's home but no explosion. The Board's finding that the explosion did not occur was not unreasonable in my view in the absence of a credible explanation for these inconsistencies.
2. Objective fear
[15] The Kosmacajs submit that significant portions of the documentary evidence that contradicted the conclusions of the Board were ignored in the Board's assessment of objective fear. The applicants argue that the documentary evidence shows that there are numerous cases of DP members singled out by police and that there is repression of political dissent. The Board was obliged to explain why it was not relying upon this evidence: Bains v. Canada (Minister of Citizenship and Immigration)(1993), 63 F.T.R. 312 (T.D); Dirie v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 1 (T.D.). The more important the omitted evidence, the more willing a Court may be to infer from the silence that the Board made an erroneous finding of fact without regard to the evidence: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.).
[16] The respondent submits that the Board made no error in its assessment of the documentary evidence. The most recent country documents relied upon by the Board fully support its conclusions that there are no confirmed reports of detention for strictly political reasons, political repression is not a serious problem, and the SP has overseen a return to stability since 1997.
[17] The respondent argues that the Board is not required to comment on every piece of evidence and failure to do so is not necessarily fatal to the decision. It must weigh the value of the evidence and, here it found that the applicant did not meet the onus of demonstrating with sufficient evidence that he faced a well-founded fear of persecution because of his political profile and involvement with the DP. These findings were rationally based on the evidence before it: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
[18] I do not find that the Board erred in its assessment of the objective evidence. The reports before it appeared to be cautiously optimistic about the situation in Albania. The United States Department of State Report (2002) found many problems in Albania, but not particularly for DP members. Passages cited by the applicant appear much more benign when read in context. For instance, a quotation from a Board research document that refers to political repression is not actually a statement by experts on the situation in Albania, but part of a question that was put to the three experts interviewed.
[19] Support for each of the findings made by the Board respecting country conditions can be found in the documentary evidence that was before it and I cannot conclude from a review of that evidence that the Board ignored any significant reports that contradicted those findings.
[20] While the incidents described in the Amnesty International 2001 report are disturbing, they involve people who were quite prominent politically or who had attracted special attention to themselves. The Board found that the applicant did not have a high profile and specifically did not believe that he spoke at public events. Consequently, the Board's failure to specifically mention this information was not an error, as it did not apply to the applicant's situation.
[21] I am of the view that the Board's findings were open to it on the evidence and that there are no reviewable errors in its analysis and findings. Accordingly, this application is dismissed. No questions of general importance were proposed and none are certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No questions are certified.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5246-03
STYLE OF CAUSE: BLENDI KOSMACAJ, ERJOLA KOSMACAJ and
SAMANTHA KOSMACAJ and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 13, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: January 17, 2005
APPEARANCES:
Robert Gertler FOR THE APPLICANT
Gordon Lee FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROBERT GERTLER FOR THE APPLICANT
Gertler & Associates
Etobicoke, Ontario
JOHN H. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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