Date: 20110323
Docket: IMM-3672-10
Citation: 2011 FC 362
Ottawa, Ontario, March 23,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
|
|
ARJET TORISHTA AND IRENE SHEQI
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants seek an order setting aside the June 11, 2010 decision of the
Refugee Protection Division of the Immigration Refugee Board (the Board), which
found them to be neither Convention refugees nor persons in need of protection
under sections 96 and 97 of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA).
For the reasons that follow, the application for judicial review is granted.
[2]
Mr.
Torishta, the principal applicant is an Albanian citizen. He is married to
Irene Sheqi and her refugee claim is joined to his. The applicant claimed to
be fleeing a blood feud in Albania.
[3]
The
evidence before the Board was that the applicant’s father was allegedly
murdered for his political activities by Preng Culaj on April 5, 1991. On
December 20, 1997, Culaj confronted the applicant’s brother in front of a
café. A struggle ensued wherein the applicant’s brother wrested Culaj’s gun
away from him and shot and killed Culaj with it in what was later determined to
be self-defence. The applicant’s brother was acquitted of any charges. The
Culaj family subsequently sent a representative to the Torishta family to
inform them that a blood feud had been declared as a reprisal for the Culaj
death. In a narrative provided to Citizenship and Immigration Canada as part
of a Schedule 1 form, the applicant declared “Nothing has happen [sic] since then
[when the blood feud was declared] but we are still in a blood feud”.
[4]
The
only evidence that the applicant supplied to the Board in support of his claim
was a letter from the National Reconciliation Committee (NRC; alternatively
called by the Board “National Committee for Reconciliation”). The letter
stated “We verify that Arjet Torishta’s family is in a blood feud with Preng
Culaj’s family.”
[5]
The
Board predicated its rejection of the applicant’s claim on the lack of credibility
and plausibility in the applicant’s evidence and on the availability of
existing Albanian state protection. The Board concluded that there were a
number of inconsistencies and implausibilities in the claimant’s testimony. The
question before this Court is whether these conclusions and their basis as for informing
the decision under review are unreasonable.
[6]
Because
I find that the Board’s decision in respect of the applicant’s evidence in the
form of the NRC letter is unreasonable, the Board’s findings on state
protection need not be reached here.
[7]
With
respect to the letter from the NRC tendered into evidence by the applicant, the
Board, in its decision, found that:
From my specialized knowledge on this
issue, it is easy to obtain a letter from the NRC verifying any attempts made
to confirm the existence of a blood feud and to resolve it. There is no
credible evidence before me to indicate that the alleged blood feud is ongoing
and would still be a problem for the claimants today.
[…]
The male claimant’s evidence regarding
his knowledge that Culaj killed his father is not plausible or what a
reasonable person would expect to hear on the subject. The male claimant said
that he and his brother went to the local police station in January 1997 to try
to get proof of his father’s assassination. He said everything was burned and
there were no staff people there. He said they found the document they were
looking for and took note that Culaj had been the assassin. He said that even
though there was no one there, they did not take the document or try to copy it
and merely took note of the information. Under those circumstances, I do not
find it plausible that they left the wrecked and unstaffed police station
without the proof they needed to take to the police to prove what had happened
to their father.
[8]
In
making these findings, the Board relied on the following passage cited by von
Finckenstein J. in Hamid v Canada (Minister of Employment
and Immigration), [1995] FCJ No 1293 at para 21:
Consequently, in my opinion, the
applicant’s assertion that the Board is bound to analyze the documentary
evidence “independently from the applicant's testimony” must be examined in the
context of the informal proceedings which prevail before the Board. Once a
Board, as the present Board did, comes to the conclusion that an applicant is
not credible, in most cases, it will necessarily follow that the Board will not
give that applicant’s documents much probative value, unless the applicant has
been able to prove satisfactorily that the documents in question are truly
genuine. In the present case, the Board was not satisfied with the
applicant's proof and refused to give the documents at issue any probative
value. Put another way, where the Board is of the view, like here, that the
applicant is not credible, it will not be sufficient for the applicant to file
a document and affirm that it is genuine and that the information contained
therein is true. Some form of corroboration or independent proof will be
required to “offset” the Board’s negative conclusion on credibility.
[Emphasis added]
[9]
It was therefore reasonably open to the Board to doubt the authenticity or
credibility of the applicant’s NRC letter because it found him to be lacking in
credibility. However, the procedure by which the Board arrived at its conclusion
as to credibility is not reasonable. In rejecting the applicant’s evidence the
Board invoked specialized knowledge without giving the applicant notice as Rule
18 of the Refugee Protection Division Rules (SOR/2002-228) (the RPD Rules)
requires it to do.
[10]
The
applicant submitted, as corroborative evidence, a letter which he claimed was
issued to him by the NRC. In considering the letter the Board member, after claiming
specialized knowledge in respect of Albanian issues, held:
[…] The letter itself reiterates what the
male claimant wrote in his PIF, and requests that “mediators would like to see
some state to take Arjet and his brothers under their protection...”. The
alleged mediators are not named in the letter. The documentary evidence
(Exhibit R/A-1, item 3.4, RIR ALB1019902.E, 16 October 2006) for Albania indicates the ease with which
fraudulent documents may be obtained in Albania.
[…]
I considered the evidence adduced on this
issue, and find there is no persuasive credible evidence on which I can give
the document from the city any weight.
[…]
From my specialized knowledge on this
issue, I know
that it is easy to obtain a letter from the NRC verifying any attempts made to
confirm the existence of a blood feud and to resolve it. There is no credible
evidence before me to indicate that the alleged blood feud is ongoing and would
still be a problem for the claimants today.
[Emphasis added]
[11]
It
is true that, pursuant to subsections 170(g) and 170(i) of the IRPA, the
Board is not bound by strict rules of evidence found in other areas of the law
and may take into account “any information or opinion that is within its
specialized knowledge.
[12]
However,
Rule 18 of the RPD Rules, provides that:
|
18. Before using any information or opinion that is within
its specialized knowledge, the Division must notify the claimant or protected
person, and the Minister if the Minister is present at the hearing, and give
them a chance to
(a) make representations on the reliability and use of the
information or opinion; and
(b) give evidence in support of their representations.
|
18. Avant d’utiliser un renseignement ou une opinion qui
est du ressort de sa spécialisation, la Section en avise le demandeur d’asile
ou la personne protégée et le ministre — si celui-ci est présent à l’audience
— et leur donne la possibilité de :
a) faire des observations sur la fiabilité et
l’utilisation du renseignement ou de l’opinion;
b) fournir des éléments de preuve à l’appui de leurs
observations.
|
[13]
The
letter is, on its face, legitimate. If the Board was of the view that the
letter was not authentic and relied on specialized knowledge to impugn it as fraudulent,
then the Board ought to have said so and provided the applicant the opportunity
to respond. The address, letterhead, e-mail and telephone number of the NRC
were all readily verifiable. The Board’s failure to give notice to the
applicant of the Board’s conclusion that the letter was fraudulent constitutes
a breach of procedural fairness, as well as a breach of Rule 18. What
transpired before the Board was analogous to what would offend the evidentiary
rule established in Browne v Dunn (1893), 6 R. 67 (HL), discussed by the
Supreme Court of Canada in R v Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193.
[14]
For
the above reasons, the application for judicial review is granted. The matter is
referred back to the Immigration Refugee Board for reconsideration before a
differently constituted panel of the Board’s Refugee Protection Division.
[15]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that the
application for judicial review is granted. The matter is referred back to the
Immigration Refugee Board for reconsideration before a differently constituted
panel of the Board’s Refugee Protection Division. No question for
certification has been proposed and the Court finds that none arises.
"Donald
J. Rennie"
Email this Content