Date: 20060927
Docket: IMM-3966-05
Citation: 2006 FC 1144
Ottawa, Ontario,
September 27, 2006
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
JOAN
BENDI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Joan
Bendi (the “Applicant”) seeks judicial review of the decision made by the
Immigration and Refugee Board, Refugee Protection Division (the “Board”) on
June 10, 2005. In its decision, the Board determined that the Applicant is not
a Convention refugee nor a person in need of protection, as defined by the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, as amended (the “Act”),
sections 96 and 97.
[2]
The
Applicant is a citizen of Albania. He based his claim of fear
of persecution upon his political opinions and activities.
[3]
The
Applicant claimed that his family had a long history of being persecuted by the
Communist regime in Albania, including denial of
education and seizure of property. Following the political changes in Albania in the early 1990’s, the
Applicant worked in Germany for approximately six years
as an engineer. He then returned to Albania
and began his own business, an information agency, that transmitted news
articles to media agencies.
[4]
In 1998,
the Applicant became a member of the Democratic Party (the “DP”). In addition
to his party membership, he supported the party through his business by
“spreading its message”. He claimed that the governing Socialist Party (the
“SP”) began making life difficult by imposing high taxes on his business and
interfering with his phone lines. These difficulties existed between the years
1998 and 2001.
[5]
In 2001,
the Applicant and his then fiancée faced increasing difficulties before the
general election of that year. On June 15, 2001, tax authorities, SP officials
and the police came to his office and accused him of running a political
campaign from his office. The Applicant was assaulted and injured, but he did
not seek medical treatment. When he reported the incident to the DP, he
was told that the Party could not protect him.
[6]
Shortly
after the election, the Applicant’s fiancée was assaulted by unknown
individuals. The Applicant and his two brothers intervened and were injured.
None of them sought medical attention in their home city of Tirana because they feared that the
SP would look for them in the hospital. The Applicant took his fiancée to a
hospital outside Tirana where she stayed for five days. Upon their return to
Tirana, they discovered that the Applicant’s office had been destroyed. There
was a notice in the office that suggested that the damage had been caused by SP
supporters. When the Applicant tried to file a police report, he was told that
“people who play with government and fire get burned”. He believed that the
police were complicit in the attack.
[7]
On July 4,
2001, there was an explosion at the home of the Applicant’s fiancée. They
decided to leave Albania. The Applicant married his
fiancée on July 20, 2001 and she arrived in Canada in September of that year. She made a refugee
claim that was denied.
[8]
In Albania, the Applicant re-established
his business but in January 2002, he was denied a renewal of his business
licence and ordered to vacate his office. He refused to do so. In February
2002, police arrived at his office and removed all of his equipment. The
Applicant did not work after this incident but he continued to support the DP.
[9]
The
Applicant, fearing for his safety, obtained a visitor’s visa for the United
States and flew to that country on May 30, 2003, with the intention of engaging
a smuggler to bring him to Canada. He was unable to contact the
smuggler and did not want to claim refugee protection in the United States. He decided to return to Albania on June 1, 2003.
[10]
Between
his return to Albania and October 2003, the
Applicant experienced no problems. However, prior to the election scheduled for
October 12, 2003, he was detained and beaten by the police on October 10. He
was told that all Democrats would be killed. He was not seriously injured and
was released on the following day. He continued to prepare for the election.
[11]
As
Vice-Chairman of the Tirana Election Commission, the Applicant was required to
sign the voting reports. He refused to do so on the basis of irregularities and
what he described as manipulation on the part of the SP. Other DP members who
refused to sign the reports were threatened by the SP. A representative of the
SP held a press conference and said that the names of all Election Commission
members who refused to sign the reports would be given to the police. The
Applicant kept a low profile after this to avoid the authorities. He wanted to
leave Albania as soon as possible.
[12]
On June 1,
2004, the Applicant obtained another visa for the United States. He arrived in the United States on June 18, 2004 and crossed
the border at Windsor,
Ontario on June
20, 2004. He claimed refugee protection in Toronto on the following day.
[13]
The Board
accepted the Applicant’s identity as an Albanian citizen but expressed concerns
about his identity as the operator of a news agency and a political activist.
The Applicant produced the registration certificate for his company, JON-I Ltd.
The Board noted that this certificate was valid for ten years from April 13,
1993, meaning that it would expire on April 12, 2003. It was also noted
that the permitted uses included retail wholesale, import and export, but not
news agency. The Board found it implausible that the Applicant would be
permitted to operate a business outside the
scope of the certificate and determined that he had
fabricated the story of the eviction from his office by the police in order to
“explain the sunset of his certificate”.
[14]
The
Board’s finding with respect to the breadth of the business registration
certificate apparently influenced its ultimate conclusion about the
well-foundedness of the Applicant’s claim.
[15]
The Board
gave little weight to the Applicant’s evidence that his clients were members of
the foreign press. It concluded that he failed to provide credible or reliable
evidence that he operated a news agency. It accepted his evidence that he was a
member of the DP but did not find that he was a political activist, as he
claimed to be.
[16]
The Board
also considered the question of re-availment and concluded that the Applicant
had re-availed himself of the protection of Albania when he returned to that country from the
United States in June 2003. This showed a
lack of a well-founded fear of persecution.
[17]
The Board
found that the Applicant had failed to provide credible evidence about material
elements of his claim.
[18]
In
reviewing the Board’s decision, the Court must identify the applicable standard
of review by conducting a pragmatic and functional analysis, see Sketchley
v. Canada (Attorney General) (2005), 344 N.R. (F.C.A.).
That analysis requires consideration of four factors, that is the presence or
absence of a privative clause, the relative expertise of the tribunal, the
purpose of the legislation and the nature of the question.
[19]
Decisions
of the Board are not protected by a strong privative clause; see Pushpanathan
v. Canada (Minister of Citizenship and
Immigration),
[1998] 1 S.C.R. 982. The Board has relative expertise in assessing applications
for protection pursuant to the Act. The broad purpose of the Act is to regulate
the admission of persons, including refugees, into Canada and the Act confers broad discretion to
the Board in determining such claims.
[20]
The key
element is the nature of the question. In this case, the focus is on the
Board’s conclusion that the Applicant had failed to establish his claim, that
is a fear of persecution on the basis of political opinion and activism. That
is a matter of reviewing the evidence and reaching a factual determination.
Such a determination attracts a high degree of deference.
[21]
Upon
balancing the four factors, I conclude that the appropriate standard of review
is patent unreasonableness.
[22]
The Board
based its rejection of the Applicant’s claim largely upon its assessment of his
business registration certificate. It concluded that since that document did not
refer to the operation of a “news agency”, the Applicant had been untruthful
in saying that his business had been a means through which he engaged in
political activities. It relied on this conclusion to make other negative
credibility findings against him.
[23]
I am not
satisfied, on the basis of the record, that the Board fairly dealt with the
business registration certificate. If the Board erred in this regard, that
error may have tainted its subsequent conclusions concerning the general
credibility of the Applicant and of the well-foundedness of his claim. In Abdullahi
v. Canada (Minister of Citizenship and
Immigration),
[1996] F.C.J. No. 31 (T.D.) (QL), the Court said the following at
paragraph 4:
… Once the Court has concluded that the
Board’s decision is based on a substantial error, which if it had not been made
might have caused the Board to decide otherwise, that decision should be
quashed and referred back for re-consideration by another panel of the Board.
[24]
In the
result, this application for judicial review is allowed and the matter is
remitted for redetermination by a differently constituted panel. There is no
question for certification arising.
ORDER
The application for judicial review is allowed.
There is no question for certification arising.
“E.
Heneghan”
Email this Content