Date: 20080125
Docket: IMM-3144-07
Citation: 2008
FC 102
Ottawa, Ontario, January 25, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
LUIGJ
MIRASHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Refugee Division of the Immigration and Refugee Protection Board found that
Mr. Mirashi was neither a refugee within the meaning of the United Nations
Convention nor a person otherwise in need of international protection because
he had an internal flight alternative available to him in Albania. The member gave her decision
orally immediately following the hearing. She made a number of errors in her
recital of the facts, errors which were brought to her attention as she spoke,
and which were corrected when her reasons were reduced to writing some two
weeks later. This is a judicial review of her decision.
[2]
Mr.
Mirashi’s claim arises from his position with the Land Reform Commission which
was charged with the responsibility of returning land to those who owned it
before the communist regime. He feared a particular individual who threatened
him and then assaulted him. Notwithstanding a report, no police action was
taken. He then left with his family for the United States in 2000, but was deported back to Albania in 2005. Within three days of
his return, while living with his parents, a shot was fired into their front yard.
Taking this to be an attempt to shoot him, he fled to another area of Albania to live with his cousin. Some
eight months later, he left for Canada,
where his family was already situated. There is nothing in the record about his
family’s status here.
[3]
During her
oral decision, which was recorded, the member erred in stating that he had been
back in Albania for three years after being deported from the United States, that he had travelled with
his family from Albania to Canada, while they were already
here, and that there were two personal information forms, while there is only
one. These errors were all corrected in the signed decision.
[4]
In
dialogue with Mr. Mirashi’s counsel while she was delivering her oral decision,
she said she would ensure that she got the facts right and that in any event
none of them were particularly relevant and were, in any event, immediately
corrected on the record. She said that she had not determined whether there was
a nexus between his allegations and the Convention definition of a refugee.
However she said “I have based my decision on the existence of a viable IFA in Tirana.”
There is no indication that she took the country conditions out of context.
Although she made no finding that Mr. Mirashi was not credible, presumably
meaning that she believed that he had a subjective fear if he returned to Albania, she held there was not
objective basis for that fear.
[5]
I am
satisfied that the oral and written reasons substantially conform to each
other. It is perfectly clear that the decision in both versions was based on
the internal flight alternative, and there is no fundamental discrepancy (Canada (Minister of Citizenship and
Immigration) v. Pourbahri-Ghesmat), 2007 FC 357, [2007] F.C.J. No. 492). Therefore, there was
no error in law or unfairness arising from giving contradictory reasons.
[6]
The
internal flight alternative is a pure question of fact. The standard of review
is that of patent unreasonableness (Martinez v. Canada (Citizenship and Immigration), 2007 FC 982, [2007] F.C.J.
1276. Although state protection was mentioned in the reasons, and the applicable
standard of review is usually considered to be reasonableness simpliciter
(Martinez, above), the decision was based
solely on the internal flight alternative. The decision was not unreasonable,
must less patently so, and so should stand.
ORDER
THIS COURT ORDERS that:
1.
The application
for judicial review is dismissed.
2.
There is
no serious question of general importance to certify.
“Sean Harrington”
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