Date: 20100112
Docket: IMM-2640-09
Citation: 2010
FC 37
Toronto, Ontario,
January 12, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ALFRED GJELAJ
ALEKS GJELAJ
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns the Applicants’ claim for Section 97 protection
based on prospective fear of risk due to a blood feud involving their family in
Albania. The Refugee Protection Division
(RPD) rejected the Applicants’ claim on a negative finding of credibility based
on numerous implausibility findings.
[2]
The
Applicants tendered evidence that, while the blood feud arose in 1942 it only
became an active concern to them in 1996, and that when it did become a concern
they reported it to the authorities. This evidence was rejected on the basis of
the following key implausibility findings:
The roots of the alleged BF [blood feud]
were planted in 1942, when the grandfather of these two claimants killed five
persons. Such BFs were not tolerated during the communist era, however, these
re-emerged in the early 1990s, most of them in 1991. This was confirmed by the
first claimant and is stated in his PIF narrative. However in this case, the first
claimant’s explanation as to why this BF re-emerged in 1996, that is five years
after similar dormant BFs is not acceptable. When this was put to the first
claimant, he testified, “Because in 1991 there was an exchange of blood feuds.”
Upon asked for further clarification, the first claimant stated, “I mean blood
feuds between other families,” and again he stated, “After 1990, people were
afraid. We were scared and fearful. In 1991, we went to report that families
were in blood feud.” I do not find this explanation reasonable for
explaining away the five six-year gap.
[Emphasis added]
(Decision, pp. 2-3)
[…]
In this case, the claimants allege that
inquiries were made of the neighbours to spy on the claimants’ family. This
appears to contradict the traditions of BF, and even if it happened, I find
that, on a balance of probabilities, no BF has been declared.
[Emphasis added]
(Decision, p. 3).
[3]
The legal standard for making an implausibility finding
is that stated by Justice Muldoon in Valtchev v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131:
i.
The tribunal adverts to the
principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305,
that when a refugee claimant swears to the truth of certain allegations, a
presumption is created that those allegations are true unless there are reasons
to doubt their truthfulness. But the tribunal does not apply the Maldonado
principle to this applicant, and repeatedly disregards his testimony, holding
that much of it appears to it to be
implausible. Additionally, the tribunal often
substitutes its own version of events without evidence to support its
conclusions.
7. A tribunal may make adverse findings of
credibility based on the implausibility of an applicant's story provided the inferences
drawn can be reasonably said to exist. However, plausibility findings should
be made only in the clearest of cases, i.e., if the facts as presented are
outside the realm of what could reasonably be expected, or where the
documentary evidence demonstrates that the events could not have happened in
the manner asserted by the claimant. A tribunal must be careful when
rendering a decision based on a lack of plausibility because refugee claimants
come from diverse cultures, and actions which appear implausible when judged
from Canadian standards might be plausible when considered from within the
claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON:
Butterworths, 1992) at 8.22]
[Emphasis added]
[4]
I find
that the quoted implausibility findings do not confirm with the legal standard
because the RPD failed to provide a reliable and verifiable evidentiary base
against which the plausibility of the Applicants’ evidence might be judged. As
a result, the statement that the gap in time is implausible and the spying by
neighbours is implausible is nothing more than unfounded speculation. As a
result, I find that the decision under review was rendered in reviewable error.
ORDER
Accordingly, I set aside the
decision under review and refer the matter back to a differently constituted
panel for re-determination.
There is no question to
certify.
“Douglas
R. Campbell”
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