Date: 20050204
Docket: IMM-994-04
Citation: 2005 FC 175
BETWEEN:
GENTIAN SARACI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] This is an application for leave and for judicial review, under s. 72(1) of the Immigration and Refugee Protection Act (IRPA) 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 January 5, 2004. The Officer found that the applicant was not a Convention refugee, or a person in need of protection.
Background
[2] The applicant, Gentian Saraci, is a 29-year-old citizen of Albania.
[3] He claims to be a Convention refugee, on the basis of his political opinion. He and his family are associated with the Democratic Party (DP) of Albania, and he fears persecution, threat of torture, and/or cruel and unusual treatment or punishment as a direct result.
[4] His family is well known to the authorities: his grandfather and great uncle were executed by the communists, and his father was detained and tortured for seven years by the communists, at a prison in Albania in the 1970s. Later on, in 1990, the applicant's father became a founding member of the DP, and played a key role at the local level.
[5] The applicant claims that he was heavily involved with the DP very early on in his life. He joined the DP Youth Forum in 1991, and subsequently founded the DPYF branch for his high school a year later. He subsequently (1993) became a member of the Executive Steering Committee of the DPYF at his university, before joining the main branch of the DP in 1997. In November of 1999, the applicant was made Secretary for the DP in Palorto.
[6] As a result of their political involvement, the applicant and his family claim that they were constantly the victims of threat and physical assault. In March of 1997, for example, the applicant says that the windows of his family's home were shot out, and firebombs were thrown into the home. Neighbours identified the attackers as members of the Socialist Party.
[7] In April 1998, the DP leader came to the applicant's city. The applicant's family attended the demonstration. While returning home, the applicant and his brother were attacked. The applicant says the police stood by and watched the beating, and even encouraged the socialist perpetrators. The applicant and his brother both required hospital care as a result of the beating.
[8] In May 1998, the applicant and his family protested the killing of a Democrat named Fredi Shehu. After the protest, the police detained the applicant, along with his father and brother. They learned that they had been videotaped during the demonstration. They were taken to the police station, beaten, and detained until the following day.
[9] In September of 1998, the applicant and his family attended the funeral of Azem Hajdari, a prominent DP member. They were stopped on the way home by police. The police found DP material in the trunk of the vehicle. They were taken to the Gjirotasker police station, detained, berated, and beaten. They were released a week later.
[10] In October of 2000, while campaigning for the DP, along with the DP mayoral candidate for Gjirokaster, Edward Karagjozi, the applicant was stopped, detained, and beaten by police.
[11] Just prior to the 2001 election, the applicant, his family, and the mayoral candidate were beaten, with pipes and clubs, in the presence of police, by SP members. The police rounded-up DP members after the attack. The applicant was detained for a couple of days.
[12] During the 2001 election, the applicant was aware of, and his brother witnessed, election fraud by the SP, in the form of switching ballot boxes, and casting multiple votes. The applicant's brother, and others, refused to sign the results. A foreign based committee was set up to investigate the election fraud. The applicant said that anyone willing to testify in the investigation was beaten, threatened, intimidated, and detained by police. The police even threatened the employers of potential witnesses.
[13] In April 2002, the applicant and his brother were attacked and shot at, on their way home from work. In July 2002, they attended a demonstration at the city square. They were protesting election results, and calling for a new vote. After the demonstration, the applicant and his brother were approached by two uniformed police, and a person in civilian clothes. They were grabbed, beaten, and put into a police van. They were beaten throughout the ride, and beaten again at the prison where they were taken. The police who had detained them told them that if they didn't get lost and flee Albania, they would be coming, looking to kill the applicant and his brother. They were released the next day. Following the detention there was a police vehicle parked in front of the applicant's home.
[14] The applicant then went into hiding, and left Albania to make his way through Greece to Canada. He made his refugee claim upon arrival, on August 17, 2002.
Decision Under Review
[15] The Board determined that the applicant was not a Convention refugee, or a person in need of protection. The Board found that he is not a Convention refugee, as he does not have a well-founded fear of persecution for a Convention ground in Albania. The Board also found that removal to Albania would not subject the applicant personally to risk to his life, or to a risk of cruel and unusual treatment or punishment. The Board also finds that there are no substantial grounds to believe that his removal would subject the applicant personally to a danger of torture.
[16] The Board came to that conclusion essentially because the applicant had not, on a balance of probabilities, established a political profile which would reasonably give rise to the alleged incidents, or the harm feared. The Board made that finding based on the following evidence:
a. The applicant was able to join the DPYF without incident (1991-1997);
b. The evidence showed that the applicant had a low level of political engagement, and his activities in support of the DP, such as the organization of meetings, the distribution of material, the organization of election observation, and providing routine support services to candidates, were those of an ordinary member, and not those of an activist;
c. The applicant, in his PIF, states that he personally observed election fraud, but, when testifying, admitted that he, personally, had not directly witnessed any irregularities;
d. The applicant says he was beaten to dissuade him from giving testimony before the investigative committee set up to review the electoral process, but he acknowledged that he had never had any personal involvement of any kind with the international committee, set up to investigate the election fraud.
e. None of these events were mentioned in a letter of attestation from the Chairman of the DP from Gjirokaster; and
f. The applicant, according to the officer, felt safe outside his home town, but would not move because he feared he would be unable to get work.
[17] Finally, the Board found that the objective evidence in the country documents do not support the allegations made by the claimant of political persecution and political revenge.
Issues
[18] The applicant raises five issues:
a. Did the Board err in law by ignoring evidence, taking into account irrelevant evidence, or misinterpreting the evidence before it, or by making erroneous findings of fact without proper regard to the evidence before it;
b. Do the cumulative effect of the Board's errors amount to an error of law;
c. Did the Board err by ignoring evidence, or by acting in a perverse and capricious manner;
d. Did the Board err by making negative credibility findings not supported by the evidence; and
e. Did the Board err by failing to understand and make a ruling on the basis for the refugee claim.
Argument
[19] The applicant submits that the Board committed a reviewable error by focussing exclusively on his political profile and overlooking the evidence of his family's profile. He argues that he was not relying on his role alone as the reason to flee, but the overall role of his family in the DP and in political activity generally. As a result, the Board has misconstrued the basis of his claim.
[20] The applicant further submits that, apart from failing to consider his family's political affiliations, the Board misstated and misconstrued the facts which directly impact the applicant's political profile. He argues that an ordinary member of a political party would not be a founder, or the Chair, of a political wing, nor an executive member of any branch of that party. He adds that the Board failed to consider the current documentary evidence, since it merely referred in footnotes to the titles of three documents without particularizing its reasons for concluding that political persecution does not occur any more in Albania.
[21] The applicant also submits that the Board does not even mention a key witness at the hearing, a successful refugee claimant who was an executive with the DP and the DPYF in the same city as the applicant. He contends that the evidence from this witness goes directly to the finding of political profile, and counters the Board's finding that the applicant lacked such a profile.
[22] Finally, the Applicant challenged the alleged inconsistencies found by the Board between his PIF and his oral testimony. Going back to the transcript of the hearing before the Board and to his PIF, he tries to dispel the notion that he changed his story.
[23] The applicant says that he never admitted he felt safe in a village outside his hometown. The suggestion that the applicant felt safe outside his home town was made by the officer. The applicant testified that he only felt safe when he was indoors, in hiding. This is why he was unable to work.
[24] The respondent submits that the Board did not misunderstand the applicant's basis for the claim. The respondent says that the Board concluded that the applicant did not have a well-founded fear of political repercussions, and submits that the Board's conclusion disposes of the applicant's claim on either the ground of political opinion, or membership in a particular social group.
[25] The respondent alternatively submits that, even if the Board committed an error in analysing the applicant's grounds for fearing persecution, the error is not central to the decision, given the Board's negative credibility findings.
[26] As regards the documentary evidence, the respondent says the Board's failure to mention the documentary evidence is not fatal to the Board's decision. The respondent says that the fact that there was other evidence before the Board does not establish that the evidence was ignored or misconstrued.
[27] The respondent also notes that there is a presumption that a Board has considered all of the evidence produced before it, so the Board is not obliged to refer to every piece of evidence before it. The respondent says that the Board must consider the totality of the evidence, and it did so here
[28] The respondent says that the Board's assessment of credibility is entitled to the highest level of deference by the Court. So long as the credibility findings are reasonably open to the Board, the Court should not interfere.
[29] The respondent also says that the Board drew an inference, from reading the Port of Entry Officer's notes, that the applicant felt safe in a village outside his hometown. The respondent says this inference is reasonable, as the Board could rely on the Officer's notes.
Analysis
[30] The resolution of this application for judicial review turns on one key decisive factor: the credibility of the applicant. The Board concluded that he would not be personally subjected to a risk to his life or to a risk of cruel or unusual treatment or punishment should he be returned to Albania. The applicant, on the other hand, claims that he and his family have the political profile which would bring him to the attention of the state.
[31] Because the Board is a specialized tribunal with expertise in assessing a country's objective conditions, and because it has the benefit of observing witnesses directly, its findings of credibility must be given much deference. As stated by the Federal Court of Appeal in Agubor v. Canada (M.C.I.), [1993] F.C.J. no. 732:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position that the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[32] In other words, this Court will not intervene in the findings of credibility of the Board even if it were to come to a different conclusion, unless these findings are patently unreasonable. In the present case, I have come to the conclusion that the applicant has been successful in demonstrating that this is one of those rare instances where this Court is warranted to intervene.
[33] In making this assessment, I am mindful of the presumption set out in Florea v. Canada (M.C.I.), [1993] F.C.J. no. 598 according to which the Board considered all the evidence before it. As a result, the Board does not have to comment on all the evidence (documentary and oral) that is adduced before it. However, as was said in Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.) "the more important the evidence which is not specifically mentioned and analysed, the more likely it is that a reviewing court may infer from the failure to mention the evidence that it was overlooked". This reasoning applies with equal force to the Refugee Protection Division.
[34] A careful reading of the tribunal's decision shows that many aspects of the applicant's evidence were overlooked, or ignored. It is equally disturbing to see that the Board failed to comment on important, or relevant, material evidence.
[35] For example, one fails to understand how the Board could remain silent with respect to the high political profile that the Applicant's family seems to have in Albania. It may not have been a mistake for the Board to conclude that the Applicant's claim on the ground of political opinion was not separate from his claim based on membership in a particular social group. But as counsel for the respondent readily admitted during the hearing, being a member of a family which has a long history of political opposition could certainly add to the credibility of the applicant's profile. At a very minimum, one would have expected some discussion of this very relevant factor. Indeed, it appears from the IRB record (p. 1013) that all the family has moved to Greece following the last incidents reported by the applicant.
[36] Similarly, the Board finds that the applicant's activities in support of the Democratic Party were those of an ordinary member and refers to the most mundane of these activities, while ignoring the more significant ones like the fact that he founded and was the chair of the DPYF for his high school, that he was an executive of the adult wing of that same party, that he appeared on podiums during election periods with candidates.
[37] In the same vein, it is difficult to understand why the Board failed to refer to a letter from a candidate in the election of a mayor, attesting that the applicant was a prominent activist of the DP. The same goes for the medical records submitted by the applicant, which would tend to confirm the applicant's story of repeated beatings as he was hospitalized following the alleged incidents in his testimony.
[38] The Board's decision focussed instead on apparent inconsistencies between the applicant's claim and the evidence, but it appears that some at least of these alleged discrepancies were explained by the applicant during the hearing before the Board. For instance, the Board found that a letter of attestation from the chairman of the local branch of the DP made no reference to any political involvement of the applicant after the Albanian elections of 2000, nor to the incidents of beatings and detention following the election of June 2001. Yet the record shows that there is a second letter from the same person which is much more explicit (the Member was in fact corrected during the hearing on that point), and the claimant testified that he had not reported all these incidents to the chairman. This is not even discussed in the reasons of the Board.
[39] One could go on like this, as there are other troubling omissions or apparent misunderstandings of the evidence. The point here is simply that to assess whether the applicant is a political activist, all the relevant material evidence must be considered.
[40] One last point needs be made with respect to the country's objective conditions. In order to come to its conclusion that the applicant would not be at risk if he were to return to Albania, the Board only alluded to three country documents (Country Report on Human Rights Practices (Albania), from the U.S. States Department (2002), Albania Assessment, from the U.K. Home Office, 2002, and the Report on Albania, from Citizenship and Immigration Canada, (2002)) referred to in a footnote. It would probably be asking too much from the Board to go into a detailed analysis of these often lengthy documents to support their conclusions. On the other hand, natural justice and the right to be apprised of the reasons supporting a decision of such importance would seem to call at least for some guidance as to the kind of facts and reasoning that swayed the Board one way or another, especially when the reports are nuanced and could lend credence to the applicant's allegations.
[41] In the present case, the Report on Albania from CIC acknowledges that NGO representatives (Record of the Tribunal, p. 208) believed there have been a few isolated cases of political intimidation in the not-too-distant past. Moreover, the applicant had provided evidence that political persecution and political revenge are taking place in Albania, yet the panel member did not even refer to this evidence when considering country conditions. In light of all this, it would have been appropriate to have more than a line tersely asserting that "the objective evidence in the country documents do not support the allegations made by the claimant of political persecution and political revenge".
[42] As a result, this Court is convinced that the impugned decision of the Refugee Protection Division of the IRB is fraught with errors of fact which, by their number and significance, go to the heart of the applicant's submissions and fatally undermine the reasonableness of the tribunal's findings.
(s) "Yves de Montigny"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-994-04
STYLE OF CAUSE: GENTIAN SARACI v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 18, 2005
REASONS FOR ORDER BY: de MONTIGNY J.
DATED: FEBRUARY 4, 2005
APPEARANCES:
Mr. Jeffrey Goldman FOR THE APPLICANT
Mr. David Tyndale FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Jeffrey Goldman
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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