Date: 20040809
Docket: IMM-5336-03
Citation: 2004 FC 1088
Ottawa, Ontario, this 9th day of August, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
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GEZIM
MERSINI
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Applicant
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- and -
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THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS
FOR ORDER AND ORDER
[1]
The Applicant, a citizen of Albania, arrived in Canada in 2001 and claimed Convention refugee status. By decision dated June 10, 2003, a
panel of the Immigration and Refugee Board, Refugee Protection Division
("the Board") denied his claim.
Issues
[2]
The Applicant raises two issues:
1.
Was the Board’s conclusion that the Applicant was not a
credible or trustworthy witness patently unreasonable?
2.
Did the Board err by ignoring one of the grounds of his
claim?
Board’s Decision
[3]
The Board described the basis of the Applicant’s claim as a
"well-founded fear of persecution at the hands of the Socialist Party (SP)
who form the current government, the police and unknown masked people who
support the SP, by reason of his political opinion." Credibility was the
determinative issue for the Board. It found that the Applicant failed to
discharge the onus of establishing his case, pointing to "numerous
instances of inconsistencies and omissions which leads the panel to find the
Applicant not to be a credible or trustworthy witness". In particular,
the Board described five such "inconsistencies and omissions" as
follows:
•
The Applicant’s testimony that he was a member of the
Democratic Party ("DP"), sub-branch 53 was contradicted by the
membership card which described the sub-branch as 60/3. His only explanation
for this discrepancy was that the card must contain a "typo".
•
Inconsistent with claimants in other cases, he had no
satisfactory explanation for failing to submit a letter of attestation of his
DP membership.
•
In his Personal Information Form ("PIF"), he
stated that he was attacked by 4 masked men. In his oral testimony, he
described the men as wearing uniforms.
•
In his PIF, there was no mention of his father’s membership
in the DP.
•
Testimony that his café was "obliterated" in 1997
was inconsistent with his Port of Entry notes where he stated that he owned a
coffee shop and evidence at the hearing that he paid taxes for the year 1999.
Analysis
Issue no 1: Credibility
[4]
In respect of the issue of credibility, the applicable
standard of review is patent unreasonableness. That is, the decision will only
be overturned if I find that it was entirely unsupported by the evidence before
it.
[5]
Looking at the decision as a whole, I cannot conclude that
it was patently unreasonable. While any one of these errors or omissions might
have been inconclusive on its own, cumulatively, they were sufficient for the
Board to find that the Applicant lacked credibility with respect to two key
aspects of his claim - his membership in the DP and the alleged events of
persecution. While I might have decided otherwise with respect to one or more
of the issues, evidence exists to support each of the five findings. There is
no reviewable error.
Issue no 2:
Failure to consider grounds of claim
[6]
The Applicant submits that the Board failed to deal with a
central aspect of his claim, that being his membership in a family that had a
close relationship with Dr. Sali Berisha, a former president of the DP. At the
time of completing his PIF, counsel for the Applicant identified the Convention
grounds on which the claim rested as "Political Opinion" and
"Membership in a particular social group - Family". The Applicant
asserts that this second aspect of his claim was supported by the evidence as
follows:
•
the Applicant’s brother-in-law was a driver for Dr. Berisha;
•
the Applicant’s brother-in-law and sister were granted
refugee status in France;
•
Dr. Berisha was physician to the Applicant’s father; and
•
the Applicant submitted photos of certain family members
posing next to Dr. Berisha.
[7]
I agree with the Applicant that the Board does not state in
its decision that it is rejecting the claim of family membership. The Board
specifically states, at one point in its decision, that the Applicant
"bases his claim on his political opinion, his membership in the DP and
persecution he suffered while in Albania". The inference that the
Applicant would have me make is that the Board must have accepted as credible
the family membership aspect of his claim. Alternatively, by not addressing
why this part of the claim was not credible, the Board erred (Rahman v.
Canada (Minister of Employment and Immigration) (1989), 8 Imm.
L.R. (2d) 170 (F.C.A.); Pour v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. No. 1282 (C.A.) (QL)).
[8]
While ignoring a part of a refugee claimant’s claim would
ordinarily be a serious and potentially fatal error, I am satisfied that, in
this case, there was no reviewable error. The onus rests with a refugee
claimant to introduce into evidence all the material that may be essential to
assessing his claim (Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689). Although the Applicant now alleges that his claim of
family membership was a central aspect of his claim, the record does not bear
that out in a number of material ways. For example, although the Applicant
frequently mentioned in his testimony his family’s association with Dr. Berisha,
he did not claim that he, personally, had suffered persecution because of his
family’s experiences. The Applicant acknowledged that he would not likely have
been successful in claiming refugee status in France, thereby effectively
admitting that his situation was different and less compelling than that of his
sister and brother-in-law. Although the Applicant submitted photographs of
family members posing with Dr. Berisha, there were none of the Applicant. Finally,
and perhaps most telling, there is the testimony of the Applicant. When asked
why the Socialists and the government wished to harm him, his response was
"Because I was a member of the Democratic Party". In short, the
Applicant’s membership in a particular social group (family) was not
"central" to his claim. It appears to have been an afterthought that
was not supported by any evidence.
[9]
The Board member was certainly aware of the Applicant’s
family's relationship with Dr. Berisha; it is referred to in the decision. Thus,
the Board did not err by ignoring the evidence before it.
[10]
It would have been preferable for the Board to address more
directly this ground of the Applicant’s claim. Given the Applicant’s focus on
his membership in the DP and alleged incidents of persecution, however, it is
understandable why the Board directed its decision to this aspect of his claim.
Having reviewed the record, I am satisfied that there was insufficient evidence
to found a claim based on the Applicant’s family’s relationship with Dr. Berisha.
It is not enough for adult refugee claimants to baldly state that, because of
difficulties encountered by family members, they ought to be considered
Convention refugees. There must be some evidentiary basis upon which a
claimant is linked to the persecution suffered by the family members. Here,
there was no such evidence. On the specific facts of this case, failure of the
Board to address this ground of the claim is not fatal to the decision. Even
with direct reference to the family relationship ground of his claim, the
decision would not have been different for the simple fact that there was
insufficient evidence to substantiate this ground.
Conclusion
[11]
For these reasons, I am satisfied that the decision should
stand. The application will be dismissed.
[12]
Neither party proposed a question for certification. None
will be certified.
ORDER
THIS COURT ORDERS that:
1.
The application is dismissed.
2.
No question of general importance is certified.
“Judith
A. Snider”
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