Date: 20010205
Docket: IMM-664-00
Reference: 2001 FCT 21
BETWEEN:
EDMOND DECI
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention Refugee within the meaning ascribed to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 20th of January, 2000.
[2] The applicant is a 32 year old citizen of Albania who bases his claim to Convention refugee status on the ground of political opinion. The CRDD, in its reasons, describes the allegations giving rise to the applicant's claim in the following terms:
| The claimant alleged that he had actively participated in several demonstrations against the government of the day. As a member of the Legality Movement Party his role was to recruit members and distribute flyers. In June and August 1997, the police, for no identified reason, mistreated him very badly. At another time, when he refused to testify against the ambassador, he was beaten so badly that he had to be hospitalised. In addition to receiving threatening telephone calls, the claimant was also physically tortured in February of 1998. Later in the same year he alleges he was set on fire by a flame-thrower. The claimant went into hiding until he was ready to leave the country. |
[3] The CRDD, in its reasons, analysed the applicant's claim under the headings "Issue Of Credibility" and "Objective Basis".
[4] With the respect of the first issue, the CRDD wrote:
| The claimant presented to the panel the following documents in order to substantiate his testimony: copies of his international passport, identity card, birth certificate, family certificate and the certificate from the European Union. All these documents are dated January, February and March 1999, respectively. This postdates his date of arrival in Canada, which is January 10, 1999. When questioned about this, the panel was told that he had asked his friend, who was visiting Albania, to procure the documents for him. |
| The panel questions the validity of these documents. They are mere copies and post-date the arrival of the claimant in Canada. The claimant stated that the originals were at home in Albania and his friend had brought these copies over for him at his request. In the absence of the original documents, the panel is not able to give much weight to this evidence before them. |
[5] According to the record before the Court, neither originals or copies of the applicant's passport and identity card were before the CRDD. The applicant's birth certificate and family certificate that were before the CRDD were originals, not copies, albeit that they were originals issued after the applicant left Albania and there may well have been another set of originals in Albania, issued before the applicant left Albania. The certificate from the European Union was apparently also an original, once again albeit that it was dated after the applicant left Albania. If indeed the applicant's birth certificate, family certificate and certificate from the European Union were originals, it is difficult to understand how the CRDD could justify not giving "much weight" to these documents, despite the fact that they were issued after the applicant left Albania, without impugning the reputation of state authorities in Albania who issued the duplicate originals.
[6] The applicant testified that his passport had been turned over to Immigration Canada by a clerk at the Canadian post office. In the transcript of the hearing before the CRDD, the presiding member is recorded as saying:
| I'll explain something to you, Sir. In this country, whenever something is confiscated, the official always gives you a receipt of the items that they have taken from you. Did the Post Office give you such a receipt, that they took the passport and it was given to Immigration? |
[7] The applicant replied that he was not given a receipt.2 In its reasons, the CRDD wrote:
| However no receipt was given to the claimant by the post office for the claimant to get the passport back. In the absence of a receipt the panel gives very little or no weight to this testimony. |
[8] Before me, counsel for the respondent conceded that the presiding board member's assertion regarding provision of receipts by officials had no basis in law. I am satisfied, equally, that it had no basis in fact in the circumstances in which the applicant's passport was here turned over by the post office to Immigration Canada.
[9] Once again on the issue of credibility, the CRDD commented that it was "...at a lost to understand why the claimant would approach the police for help especially since they had treated him so badly earlier." The CRDD found the applicant's testimony in this regard to be simply not credible. This stance on the part of the CRDD put the applicant in a wholly untenable position. If he had not approached the police for help, he could reasonably have been found to have not exhausted his recourse to state protection, notwithstanding his earlier treatment by the police. Having turned to state protection, the CRDD found this action to be implausible.
[10] Once again, the CRDD found the applicant's delay in leaving Albania, indeed his failure to take advantage of the first opportunity to flee when he was in fact outside Albania for a brief period, not to be plausible in light of the experiences that he alleges he had encountered in Albania.
[11] With respect to the issue of "objective basis", the CRDD failed to mention in its reasons medical and psychiatric opinions that were before it that were capable of corroborating his claim that he was abused and tortured by Albanian authorities. While it certainly would have been open to the CRDD to determine the weight to be given to such opinions, given the totality of the CRDD's concerns regarding the claimant's credibility, I conclude that it simply was not open to it to simply ignore this evidence in its reasons and to thereby wholly discredit this corroborative evidence with no explanation whatsoever3.
[12] On the basis of the foregoing concerns, I am satisfied that, while the CRDD's determination to reject the applicant's claim on the basis of credibility might reasonably have been open to it, it simply was not open to it on the basis of its flawed analysis.
[13] Given my conclusion with regard to the CRDD's findings on credibility, and given the structure of the CRDD's reasons, I conclude that the CRDD's finding of lack of an objective basis to the applicant's claim similarly cannot stand. It is not an independent, free-standing basis for rejection of the applicant's claim. Rather, it builds upon the CRDD's concerns regarding the applicant's credibility and proceeds from that base. I am satisfied that, given the conclusion that I feel compelled to arrive at with respect to the credibility issue, the CRDD's ultimate conclusion that there was "...insufficient [credible] evidence on which the members could have determined the claimant to be a Convention refugee", simply cannot stand.
[14] In the result, this application for judicial review will be allowed, the decision of the CRDD that is under review will be set aside, and the applicant's claim to Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[15] Neither counsel recommended certification of a question. No question will be certified.
J.F.C.C.
Ottawa, Ontario
February 5, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: EDMOND DECI |
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: TUESDAY, JANUARY 30, 2001 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: Monday, FEBRUARY 5, 2001
| APPEARANCES BY: Mr. Douglas Lehrer |
| SOLICITORS OF RECORD: VANDERVENNEN LEHRER |
Toronto, Ontario
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20010205
Docket: IMM-664-00
BETWEEN:
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
__________________
1 R.S.C. 1985, c. I-2.
2 Tribunal Record, p. 166.
3 See Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, in particular, paragraphs 16 and 17, (F.C.T.D.), and Javaid v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1730, in particular, paragraph 8, (F.C.T.D.).
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