Merja v. Canada (Minister of Citizenship and Immigration), 2005 FC 73

Date: 20050119

Docket: IMM-9509-03

Citation: 2005 FC 73

Ottawa, Ontario, this 19^th day of January, 2005

Present:           The Honourable Justice James Russell

BETWEEN:

                                                             GENTIAN MERJA

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review under s. 72(1) of the Immigration and Refugee Protection Act ("Act") S.C 2001, c. 27, of the decision made by an officer ("Officer") of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated November 13, 2003 ("Decision").

BACKGROUND

[2]                The Applicant, Gentian Merja, claims to be a 28-year-old citizen of Albania.     

[3]                He says he has a well-founded fear of persecution due to his political opinions. He claims to be an activist with the Legality Party ("LP") which is a government opposition party in Albania.

[4]                The Applicant belongs to a family whose members joined the LP when it became a recognized political party in 1993. His family worked for the LP in the 1996 elections. He was unable to participate to a great extent because he was in the armed forces. However, he requested, and was granted, a three-week leave to work on behalf of the LP.

[5]                Two days after the Democratic Party ("DP") won the election, the Applicant and his father attended a rally in Vlore protesting election manipulation. The Applicant says they were arrested and beaten when the police attacked the rally's participants.

[6]                On July 3, 1997, the Applicant and his father went to participate in another rally, in Tirana, to protest the June 1997 election results. The Applicant says they were both attacked. The father suffered internal injuries and had to be hospitalized, while the Applicant's injuries were less serious. The Applicant returned to his home in Vlore.

[7]                On July 7, 1997, the Applicant returned to Tirana to attend a major recruitment rally, and he became an official member of the LP.

[8]                A few weeks later, he says he was appointed secretary for his neighbourhood branch of the LP in Vlore. He went to meetings and took minutes.

[9]                He attended the funeral of Azem Hajdari, who was the Chairman of the Democratic Party who was murdered, on September 14, 1998, after which he says he was arrested for one day and beaten by the police.

[10]            At the end of August 2000, he was campaigning for the LP for the upcoming October elections. The Socialist Party won the elections through manipulation. On October 5, 2000, the Applicant attended a protest meeting. He was beaten and detained by police for two days. After his release, he says he spent three days in a hospital.

[11]            On March 7, 2001, he received a summons to present himself on March 10 at a local police station. Fearing further beatings, he says he left his home on March 9 and hid at the house of a friend. His father told him that, on March 12, the police went to his home to arrest him. At this point, the Applicant decided to flee Albania. He obtained a false Italian passport from a smuggler. He travelled through Italy and the United Kingdom, arrived in Canada on March 28, 2001, and made his refugee claim upon arrival.   

DECISION UNDER REVIEW

[12]            The Board determined that the Applicant does not have a well-founded fear of persecution for a Convention ground in Albania. The Board also found that the Applicant is not a person in need of protection, and there are no substantive grounds upon which to believe that he will be subjected to torture, risk of life, or cruel and unusual treatment in Albania.

[13]            The Board based its Decision on four issues:

(a)         the Applicant's personal identity;

(b)         the Applicant's credibility, with respect to previous claims in the United Kingdom and Italy;

(c)         the Applicant's political identity as an LP activist; and

(d)         the country condition documentation identifying the limited persecution of the LP by the state of Albania.

[14]            The Board found that the Applicant's personal identity was established by his testimony, Albanian passport, birth certificate, family certificate, and school certificate.

[15]            The Applicant's credibility was questioned because someone with the same birthday, and a similar name, made a failed refugee claim in the United Kingdom in 1995. The Applicant said that he had never made such a claim in the U.K.. He said one of his friends may have used his name to make a claim, as they were also fleeing Albania due to their membership in the LP. The Board found, on a balance of probabilities, that someone else could have made the failed claim in the U.K.. Hence, the Board accepted the Applicant's explanation. The Board was also satisfied that the Applicant never had status in Italy.

[16]            The real basis of the Decision is the Board's finding that the Applicant was not a member of the LP as he alleged and does not have the political profile he alleged.

[17]            A key finding of the Board relates to the Applicant's LP membership card, which he supplied as proof of his LP membership. The Board found, on a balance of probabilities, that the card had been tampered with, and hence gave it no weight. The Board took the position it did not need an expert to authenticate evidence if there was sufficient reason to doubt its authenticity (Adar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 695 (F.C.T.D.)). In this case, the sufficient evidence was the Board's own specialized knowledge of LP membership cards. Typically, such cards contain a photograph, with a circular dry seal over the photograph, which is a security feature. On the Applicant's card, the dry seal was not a complete circle over his photograph, which caused the Board to conclude that the card had been tampered with. The Board found that, on a balance of probabilities, the Applicant's photograph had been glued onto the card after an old one had been removed, thus damaging the seal.

[18]            The Applicant also presented two letters of attestation to corroborate his LP membership. The Board found that, given the false LP membership card, and the prevalence of document fraud in Albania, the two letters were not authentic. The Board further pointed out that, even if the letters were authentic, there was still not sufficient evidence to prove that the Applicant was an LP activist, or that he had been a secretary who took minutes at meetings. The Board found that the documents were not authentic, and gave them no weight.

[19]            The Applicant also supplied a medical certificate to corroborate the alleged events of October, 2000. The Board gave this document no weight. To accept this document, would have meant accepting the underlying facts, which the Board would not do.

[20]            The Board went on to state that, even if the Applicant was a member of the LP, the country documentation did not support that he would face more than a mere chance of persecution if he returned to Albania. The Board cited three professors, who noted that political incidents involving the LP are very limited, and that the risk for LP members is decreasing due, in part, to the rise of younger people who are not "so thoroughly inculcated with the traditional political culture." (RefInfo ALB34263.E, 20 April 2000) The professors also said that the LP is a marginal political force, with internal difficulties.

[21]            The Board concluded, on a balance of probabilities, that the Applicant had not presented sufficient credible or trustworthy evidence upon which the Board could make a positive determination that he was a Convention refugee, and the Board also found that the Applicant is not a person in need of protection.

ISSUES

[22]            The Applicant raises eight issues, although there is significant overlap between them. He says that:

(i)          the Board erred in law in determining that he was not a Convention refugee or a person in need of protection by failing to reasonably assess the evidence as a whole;

(ii)        the Board erred in law in determining that he was not a Convention refugee or a person in need of protection by discarding the documents provided by the Applicant in support of his claim in a patently unreasonable manner;

(iii)        the Board erred in law in determining that he was not a Convention refugee or a person in need of protection by failing to consider relevant evidence;

(iv)        the Board erred in law in determining that he was not a Convention refugee or a person in need of protection by misstating the evidence;

(v)         the Board erred in law in determining that he was not a Convention refugee or a person in need of protection by misconstruing the evidence;

(vi)        the Board erred in law in determining that he was not a Convention refugee or a person in need of protection by failing to make clear findings of credibility in relation to witness testimony;

(vii)       the Board erred in law in determining that he was not a Convention refugee or a person in need of protection by failing to provide adequate reasons for its findings of credibility in relation to witness testimony and documentary evidence; and

(viii)      the Board erred in law in determining that he was not a Convention refugee or a person in need of protection by imposing an improper onus on the Applicant to establish that he had a well-founded fear of persecution and/or faced risk to life or cruel and unusual treatment in Albania?

ARGUMENTS

The Applicant

The Identity Card

[23]            The Applicant argues that the Board made important findings of credibility on improper grounds and without due regard to the evidence as a whole. He says that the Decision is principally based on the finding that he is not a member of the LP as claimed. This finding itself is based on the Board's conclusion that his LP membership card was fraudulent. The Board based the finding of an invalid card on the incomplete circular dry seal over the photograph on the LP card.

[24]            The Applicant submits that the Board reached the Decision in the absence of forensic analysis and relied upon the decision in Adar, which states that panels do not need to be experts in authenticating a document if there is sufficient evidence to doubt the document's authenticity.

[25]            The Applicant argues that all of the Board's subsequent findings, with regard to the two letters and the medical certificate, rest on the finding of a fraudulent LP membership card.

[26]            The Applicant takes the position that the Board did not have sufficient evidence before it to properly dismiss his membership card as a fraudulent document. The only evidence before the Board was the card itself, and the Board's specialized knowledge. The Applicant submits that, while the Board is expert in weighing evidence concerning the authenticity of documents, it is not an expert in the authenticity of documents per se. The Applicant also points out that, in Adar, there was expert forensic evidence before the CRDD.

[27]            The Applicant says that, in a case where the authenticity of a single document determines the outcome of a claim, the Board must forward the document, in this case the LP membership card, for a proper forensic analysis before dismissing the document as inauthentic. In assuming the role of an expert in the authenticity of documents, the Board acted in a patently unreasonable fashion. (See Mbabazi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1623 (F.C.T.D.); Kaschine v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 214 (F.C.T.D.)).

Country Conditions

[28]            The Board also found that, even if the Applicant was a member of the LP, he would not face more than a mere chance of persecution if returned to Albania, based on the country condition documents.

[29]            The Applicant says that the Board based its Decision on outdated and contradictory documentation. The three professors cited by the Board offered three different opinions: (a) the LP persecution has lessened a bit; (b) LP members were legitimately arrested for inciting a riot, and LP is involved in the de-stabilization of Albania; and (c) no member of the LP was subjected to maltreatment or violence on account of his political appurtenance. The Applicant submits that, based on this contradictory information, it is not clear that the Applicant would not face persecution in Albania.

Improper Onus

[30]            The Applicant submits that the Board referred in its reasons to the balance of probabilities as being the appropriate test and thereby imposed an improper onus on the Applicant to prove his claim for refugee protection.

[31]            He says that he is not required to establish his case on a balance of probabilities, but rather on a reasonable chance of persecution basis. He says that a reasonable chance is less than a fifty percent chance (or "probability"), but more than a minimal or mere possibility. He says the Board imposed an onus that was greater than a reasonable chance of persecution and, thereby, erred in law.

Respondent

[32]            The Respondent argues that, as stated in Ankrah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 385 (F.C.T.D.), this Court "must be most careful not to substitute its decision for that of the Tribunal, especially when the decision is based on an assessment of credibility." The Respondent adds that, when the Board finds an Applicant not credible on findings that are open to it on the evidence, the Court should not interfere unless an overriding error has been made by the Board (Oduro v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1421 (F.C.T.D.)).

[33]            The Respondent says the Board noted that the LP membership card had been tampered with. The Board also disclosed a specialized knowledge that LP membership cards typically contain a photograph of a member and a circular dry seal over the photograph, which is a security feature. In this case, the seal was not a complete circle over the Applicant's photograph. When asked about the discrepancy, the Applicant said that all membership cards are issued this way, and this is how his had been issued to him.

[34]            The Respondent submits that the Board did not err in making its own assessment of authenticity of identity documents (Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 590 (F.C.T.D.)).

[35]            The Respondent also points out that, even if the two letters of attestation were authentic, they did not support the Applicant's allegation that he was an LP activist. Neither letter corroborates the claim that he was a secretary who took minutes at meetings.

[36]            The Respondent says that the Applicant has failed to show that the conclusions reached by the Board were so capricious, perverse, or unreasonable that the Court should set aside the Decision.

ANALYSIS

[37]            Notwithstanding the many issues perfunctorily listed by the Applicant in his written materials, this Application calls for a consideration of three grounds of attack:

1.          Did the Board, in making the authenticity of the Applicant's LP membership card the cornerstone of its reasons on the Applicant's political identity, commit a reviewable error?

2.          Did the Board err in concluding that Albania offers adequate state protection to someone in the Applicant's position?

3.          Did the Board err by imposing an improper onus upon the Applicant to prove his claim for refugee protection?

The Membership Card

[38]            The Applicant submitted an LP membership card to corroborate his membership in that party. This was central to his claim to be someone in need of protection for his political activism in Albania. This is how the Board handled the matter:

The panel finds, on a balance of probabilities, that this membership card has been tampered with and gives it no weight. Panels do not need to be experts in authenticating documents if there is sufficient evidence for doubting its (sic) authenticity. In this case, the panel disclosed its specialized knowledge that LP membership cards contain a photo of the member and a circular dry seal over the photograph, which is a security feature. In this case the dry seal is not a complete circle over this claimant's photograph. This discrepancy was put to the claimant. He testified all membership cards are issued this way and twice said that is the way his card was issued to him and that the incomplete circle was an omission. The panel does not accept this explanation in the circumstances. The dry seal is a security feature stamped on LP membership cards by the LP. The seal is not complete and the panel finds, on the balance of probabilities, that the claimant's photograph was glued onto the card after a previous photo was removed from it.

[39]            Because it rejected the LP membership card as a "false document," the Board gave no weight to supporting letters corroborating his LP membership. However, the board was careful to say that, even if the letters were authentic, they "did not support the allegation that he was a party activist."

[40]            The Applicant argues that the Board's conclusions concerning the authenticity of his LP membership card were patently unreasonable because no evidence of the LPs special security feature is disclosed on the record, and there was no forensic evidence of unauthenticity.

[41]            So the issue is whether the Board can just assert a specialized knowledge of certain documents and (provided it puts its position on unauthenticity to the Applicant and provides an opportunity to respond) base its reasons on that specialized knowledge. In effect, the Board in this case was saying that it had knowledge that the LP uses a special security feature on membership cards (a complete circle over the member's photograph). The Applicant, when this was put to him, merely disagreed that there was such a special security feature or that, in his case, the incomplete circle was an omission.

[42]            The exchange on this issue in the transcript of the hearing is helpful because it reveals what the Board was driving at:

RPO:                                        This is your membership card. It that correct?

CLAIMANT:                          Yes.

RPO:                                        It's entered as Exhibit C-2. You notice the picture is over the seal. The seal doesn't go over the picture. So -

PRESIDING MEMBER:        Wait for the question.

RPO:                                        It appears that the picture has then been substituted over the seal because the purpose of a seal is to indicate it's one and the same person. It's unbroken.

CLAIMANT:                          That's the way that they made it. And it's not only my membership card like that. All the membership cards are like that.

RPO:                                        So the Legality Party - why did they put the stamp there and then put the picture over? What is the purpose of that stamp?

CLAIMANT:                          That's the way that they are doing the membership cards. That's the procedure.

RPO:                                        Well, if this is a security feature to have the stamp over the picture, so the picture can't be replaced. So as a Socialist Party member - hypothetically - I can't pretend to be a member of the - a member of any other party or your party in particular because - I'm sorry - because the security feature would indicate the picture had been substituted.

CLAIMANT:                          According to the documents that I provided by my passport, my birth certificate and the membership card, it's my name there. So it's - the document is issued for myself. It's my personal document.

RPO:                                        Well, I remember looking at some of your other documents that have the security stamp in the right place. My memory doesn't fail me and I would (inaudible) photo attached where there is a stamp of that nature. Do I understand you perfectly? You're saying that's how you party issues these memberships - with the picture over the stamp? And they do this for everybody?

CLAIMANT:                          I cannot state that but that's the way that it was given to me. The way that it was issued to me.

RPO:                                        So you're not sure if it's issued the same way to everyone else now?

CLAIMANT:                          It may be an omission. Maybe that's the way that they are doing them. But I'm not sure.

[43]            I read the Applicant to be saying that he couldn't say whether the LP invariably issue the picture over the stamp, but he could say that this is what happened in his case.

[44]            So there was something inherently odd about the seal not being over the photograph, and the Board placed its concern clearly before the Applicant and asked for an explanation. The Board had concerns that "Document fraud is widespread in Albania" and so was naturally meticulous about the political documentation presented by the Applicant. In deciding whether or not a document is fraudulent, can the Board rely upon its own knowledge of what a document would normally look like and take note of particular features, such as security measures?

[45]            In my view, the answer to this question is yes. The Board is a specialized tribunal and inevitably acquires an expertise in its field of competence. See Pushpanathan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1207 (F.C.T.D.) at paras. 68 and 69. That experience and expertise extends to the documentary evidence that comes before it.

[46]            In Gasparyan v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1103, Mr. Justice Kelen had occasion to consider similar issues in relation to identify documents and provided the following guidance at paras. 6 and 7:

6. The appropriate standard for reviewing the Refugee Division's assessment of identity documents is patent unreasonableness: Adar v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 35 at para. 15; and Mbabazi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1623, 2002 FCT 1191 at para. 7. The panel had first-hand access to the identity documents and the testimony of the applicants, and also possesses a high level of expertise in this area.

7. The applicants have not demonstrated that the Refugee Division committed a reviewable error or made a patently unreasonable finding when it rejected the authenticity of the applicant's birth certificate. A panel is entitled to rely upon its knowledge regarding the availability of forged documents in a particular region to question their probative value: Komissarov v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 94, 2002 FCT 75. The panel's reliance upon newspaper articles that did not include a specific reference to Armenia is of no consequence. Moreover, the Refugee Division is not obliged to conduct further assessment of a document when there is enough evidence to discredit its authenticity: Hossain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 160 at para. 4 (T.D.) (QL); Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 911, 2001 FCT 590 at para. 18; and Akindele v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 68, 2002 FCT 37 at para. 5. For these reasons, it was reasonably open for the panel to reject the principal applicant's identity documents.

[47]            The Board is entitled to rely upon its own knowledge and expertise when assessing evidence (see Pushpanathan; Chowdhury v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1333 at paras. 24 - 27; and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration, [1998] F.C.J. No. 1425 (F.C.T.D.) at para. 14).

[48]            Bearing in mind the Board's concerns about the membership card, and the answers provided by the Applicant, I cannot say that the Board reached a patently unreasonable conclusion that the membership card was inauthentic. Obviously, it is within the realms of possibility that the Applicant could have been issued with a membership card on which the picture appeared over the seal. But bearing in mind the inherent oddness of this, the Board's general concerns about the prevalence of document fraud in Albania, and its assessment of the Applicant's response when the discrepancy was placed before him, there was nothing patently unreasonable about the Board's conclusions. Having found the membership card inauthentic, there is nothing patently unreasonable about the other conclusions that the Board drew based upon this fact.

The Country Documentation

[49]            The Board also concluded that "Even if the claimant were a member of the LP, which the panel does not accept, the country documentation does not support that this claimant would face more than a mere chance of persecution if he were returned to Albania."

[50]            So this was clearly an alternative ground for finding against the Applicant. Having concluded that the Board's reasons on the Applicant's political identity were not patently unreasonable, and so should stand, it is not strictly necessary to examine this alternative ground. However, for the sake of completeness, I am of the opinion that the Application should also fail on this ground.

[51]            The Applicant says that the Board based its country condition conclusions on "outdated and contradicting (sic) documentation" that was not sufficient for a finding that the Applicant would not face persecution in Albania.

[52]            The information relied upon by the Board in this regard came in a Response to Information from three professors who were experts in Albanian affairs. There is nothing to suggest this information was outdated.

[53]            One of the professors pointed out that the LP had been targeted in the past because of its association with the Democratic Party, but the risk to LP members was decreasing mainly because of the advent of younger people who were not so thoroughly inculcated in the traditional political culture. In other words, there had been targeting of LP members in the past but the political climate was changing and the risks were less than they had once been.

[54]            This is not particularly helpful as regards the current risks that the Applicant could be expected to face if he was, in fact, an LP member.

[55]            The second professor's report confirms past targeting of LP members and says this was legitimate because the LP had been involved in efforts to destabilize Albanian political life. But he also described the LP as a marginal political force.

[56]            Once again, this report speaks to past targeting and suggests a changing climate but does not really address current risk in a direct fashion.

[57]            However, a January 11, 1999 letter sent to the Research Directorate by the Executive Director of the Albanian Helsinki Committee in Tirana was much clearer:

The Legality Movement Party is a duly registered party, recognized by law. There hasn't been any particular problem as far (sic) the treatment of the members of this party. It should be added that this party has got an MP in the Parliament. That means no member of this party has been subject to maltreatment or violence on account of his political apportenance (sic).

[58]            It is somewhat difficult to correlate these three reports because they don't necessarily address the same thing. Past targeting is confirmed but it is also clear that a new political climate has resulted in less risk. The January 11, 1999 letter suggests a legitimation process that has removed the risk of violence for LP affiliation. While one would have liked a little more rigour and focus in the reports, it is not possible, in my opinion, to say that the Board's conclusions on this ground were patently unreasonable.

Improper Onus

[59]            Finally, the Applicant says the Board required him to establish his entitlement to refugee protection "on a balance of probabilities" rather than "a reasonable chance" of persecution, which is less than a 50% chance (i.e. probability), but more than a minimal or a mere possibility.

[60]            The Decision shows that, on the political identity ground, the Board found that the Applicant was not a member of the LP "on the balance of probabilities". Because the grounds are separate and alternative, it makes no difference if the balance of probabilities standard was applied to the second ground, provided the balance of probabilities is the appropriate onus for the political identity portion of the Decision, which I believe it is.

[61]            As regards country conditions, the Board found that "the country documentation does not support that this claimant would face more than a mere chance of persecution if he were returned to Albania."

[62]            The Board then says in a conclusory way that "on a balance of probabilities ... the claimant has not presented credible or trustworthy evidence upon which the panel could make a positive determination that he is a Convention refugee" and sums up as follows:

The panel finds for the above reasons, based on all the evidence presented that on the balance of probabilities that (sic) the claimant does not have a well-founded fear of persecution in Albania.

[63]            The Board's conclusions could have been put better, but the significant fact is the way the Board applies the onus in each of the sections dealing with the separate grounds.

[64]            When dealing with the Applicant's political profile, the Board is dealing with whether or not a subjective fear exists, so that the applicable burden of proof is that which is appropriate for determining the existence of other matters of fact in a case of this kind: namely, on a balance of probabilities. This is the standard that the Board applied in this cast (see Ates v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1599 at paras. 10 - 11).

[65]            As regards the risk of a return to Albania, the requisite test is a "reasonable chance" that persecution would take place. See, for instance, Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 at paras. 5 - 8.

[66]            This is the standard that the Board applied in that section of the Decision that specifically deals with the risks of returning the Applicant to Albania.

[67]            In this regard, I am guided by the words of Mr. Justice Gibson in Ndombele v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1690 at para. 17 where, confronted with a CRDD decision that was somewhat inconsistent in the language it had used to state the appropriate burden of proof, took the following approach:

On the reasons of the CRDD in this matter, read as a whole, I am satisfied that the CRDD understood the burden of proof on the applicant before it and applied that burden regardless of language it used throughout its reasons that might be read as indicating it applied a higher burden, or was at least confused as to the burden.

[68]            I am equally satisfied in the case at bar.

ORDER

THIS COURT ORDERS that:

1.          This Application for judicial review is dismissed.

2.          There are no questions for certification.

"James Russell"

JFC

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       IMM-9509-03

STYLE OF CAUSE:                                       GENTIAN MERJA v. MCI

PLACE OF HEARING:                                             Toronto, Ontraio

DATE OF HEARING:                                               OCTOBER 18, 2004

REASONS FOR ORDER:                                        RUSSELL J.

DATED:                                                          January 19, 2005

APPEARANCES:

SOLICITORS OF RECORD: