Date: 20050210
Docket: IMM-8554-03
Citation: 2005 FC 220
Toronto, Ontario, February 10th, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
ILIR HYKA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ilir Hyka claims to have a well-founded fear of persecution at the hands of the Albanian police and security forces, by reason of his involvement with the Democratic Party (DP). The Refugee Protection Division of the Immigration and Refugee Boardrejected Mr. Hyka's claim on the basis that his assertion that he had been affiliated with the DP, and had been persecuted as a result, was neither credible nor trustworthy.
[2] Mr. Hyka asserts that the Board made numerous errors in its treatment of the evidence, and that, as a result, many of the Board's factual findings were patently unreasonable.
[3] Counsel for Mr. Hyka has identified numerous alleged errors on the part of the Board. While I have carefully considered all of counsel's submissions, and have reviewed the relevant portions of the record in relation to each of those submissions, I am satisfied that many of the impugned findings were reasonably open to the Board on the evidence before it.
[4] I am, however, also satisfied that the Board erred in relation to several of its findings, each of which will be discussed in turn.
Failure to Address Documents Supporting Mr. Hyka's Claim to Membership in the DP
[5] Mr. Hyka put three documents before the Board in support of his claim that he was a member of the DP. These included a Democratic Party membership card and two letters from senior Democratic Party officials.
[6] The Board found that Mr. Hyka's membership card was not authentic. This finding was reasonably open to the Board on the evidence before it.
[7] Nowhere in its reasons, however, does the Board address the other documentation provided by Mr. Hyka in support of his claim to Democratic Party membership. This omission is all the more egregious given the heavy emphasis that the Board placed on the need for corroborating documentary evidence to support a refugee claim.
[8] While an adjudicative body will be presumed to have considered all of the evidence before it, where there is material evidence that runs directly contrary to the Board's finding on a central issue, there is an obligation on the Board to analyse that evidence, and to explain why it prefers other evidence on the point in question: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.).
[9] In this context, the failure of the Board to address the evidence before it that corroborated Mr. Hyka's claim to Democratic Party membership constitutes a reviewable error.
Failure to Address the Medical Report
[10] Mr. Hyka also produced a medical report, purportedly from a doctor in Tirana, which confirmed that Mr. Hyka had suffered injuries consistent with having been beaten by a hard object. On its face, this document provided some independent corroboration of Mr. Hyka's claim that he had been beaten by the police.
[11] Although the Board concluded that Mr. Hyka's claim to having been persecuted by the police was not credible, nowhere in its reasons does the Board make any mention of the medical report.
[12] The respondent notes that the Board questioned Mr. Hyka extensively about the report in the course of the hearing. From this, counsel says, it is clear that the Board was well aware of the existence of the document. With respect, this does not assist the respondent. In my view, the fact that the Board felt it necessary to ask Mr. Hyka a lot of questions about the document only serves to underscore its potential relevance to his claim.
[13] Here once again, we have independent documentary evidence that, on its face, would appear to corroborate Mr. Hyka's claim that he had been persecuted by the Albanian police because of his political activities. While it may have been open to the Board to reject this evidence as unreliable, it would have had to provide reasons for doing so. However, given that the evidence directly contradicts the Board's conclusion that Mr. Hyka manufactured his claim of having been persecuted, it was not open to the Board to simply disregard it.
Inconsistencies With Mr. Hyka's Personal Information Form
[14] The Board also identified what it said were inconsistencies between Mr. Hyka's oral testimony and the description of the basis for his claim contained in his Personal Information Form (PIF). One of these alleged inconsistencies related to his detention by the police when he went to the police station in order to have a photograph signed for a passport application.
[15] I have carefully reviewed Mr. Hyka's PIF and the testimony that he gave at his refugee hearing. In my view, it cannot reasonably be said that the two versions of the event were "so different" as to call Mr. Hyka's credibility into question.
Conclusion
[16] While the Board had a number of reasons for finding that Mr. Hyka was not credible, I cannot say with any certainty that it would have come to the same conclusion, had these errors not been made. As a consequence, the application for judicial review is allowed.
Certification
[17] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8554-03
STYLE OF CAUSE: ILIR HYKA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 9, 2005
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
DATED: FEBRUARY 10, 2005
APPEARANCES BY:
Ms. Hilary Evans Cameron
FOR THE APPLICANT
Ms. Mary Matthews
FOR THE RESPONDENT
SOLICITORS OF RECORD:
VanderVennen Lehrer
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT
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