Date: 20030220
Docket: IMM-770-02
Neutral Citation: 2003 FCT 210
Toronto, Ontario, Thursday the 20th day of February, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ASTRIT ELEZI
FERDANE ELEZI
ALBANO ELEZI
LEDIOLA ELEZI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention
Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated January 18, 2002, wherein the CRDD determined that the Applicants are not Convention refugees.
[2] The Applicants are a family and are citizens of Albania. The principal Applicant,
Ferdane Elezi, claims a well-founded fear of persecution on the basis of her political opinion, as a supporter of the Democratic Party. The remaining Applicants claim a fear based on their membership in a particular social group, that is, membership in the principal Applicant's family.
[3] The principal Applicant claims to have been a known supporter of the Democratic
Party. She claims to have suffered difficulty at her workplace because of these beliefs, and these difficulties escalated to persecution. The principal Applicant claims to have been threatened by Socialist Party agitators while at work, and to have been abducted and raped by Socialist Party supporters on her way to work. She claims that they demanded $7000 for her return and threatened to rape her daughter if an additional demand was not paid.
[4] I agree with counsel for the principal Applicant's submission that the abduction
and rape that the principal Applicant attested to before the CRDD is a central feature of her claim. With respect to this feature, the CRDD found as follows:
The claimant testified that she took public transit to work and had to walk through a short, deserted stretch of road to get the plant. However, the Claimant also testified, that this occurred during daylight and that the majority of the employees at Grumbullimi would also be required to take this short stretch of road at approximately the same time that the claimant alleges that she was abducted. The panel finds that the allegation made by the claimant that she would be abducted during daylight hours on the busy morning commute to work as implausible given the time of day and the number of employees required to begin at work at 8:00 a.m.
The claimant alleges that she was viciously raped by three men. When the claimant was asked if she sought medical attention, initially she stated that she had not, however, the claimant altered her testimony to note that after traveling [sic] to her parent's home two days after the alleged rape, she was visited by a doctor. It is reasonable to expect the claimant, who was viciously raped, would have required medical attention right after the incident, not two days later. The panel finds this omission not credible, and believes the claimant only altered her testimony after realizing the effects of this omission on her claim.
Taking into account, the above mentioned implausibility, omissions and inconsistencies, when considered together, the panel finds that on a balance of probabilities, the claimant was not viciously raped by three masked men, as she alleges. Both in evidence and during testimony, the claimant confirmed that she did not seek any protection from the police nor any state authorities in Albania. The claimant testified that her assailants had strong ties to the police and in her Personal Information Form stated that Mr. Lajthia had murdered the President of the Tomorri Sports Club. However, when asked how to explain how she had come to know of these facts, the claimant stated that this was conjecture on her part. The panel finds that the claimant has failed to rebut the prescription of state protection. [Footnotes omitted] (Decision, pp. 3-4)
[5] Thus, the principal Applicant's evidence with respect to the abduction and rape
was disbelieved by the CRDD on findings of implausibility. With respect to plausibility findings generally, the law is clear as stated by Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1131, at paragraphs 6 to 7 as follows:
Presumption of Truth and Plausibility
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.
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]
[6] The Applicant's evidence before the CRDD with respect to the abduction and rape
is as follows:
________________________________________________________________________
COUNSEL: After you were raped, did you think about getting medical treatment?
INTERPRETER: I'm sorry, after --
COUNSEL: You were raped --
INTERPRETER: Mm Hmm.
COUNSEL: - - did you think about medical treatment?
CLAIMANT 1: No, I didn't because I went straight to my niece.
COUNSEL: - - Did you think to report it to police?
CLAIMANT 1: No, I did not report
COUNSEL: Why not?
CLAIMANT 1: I was afraid of him, and I knew that the police were supportive of him, they were in one side. In other words, he was the man that was working or doing stuff for the police, they were working together.
(Tribunal Record, pp. 310-311)
__________________________________________________________________________________________
PRESIDING MEMBER: Madam, the events of May 5, 2000, you said you were raped by three men, is that correct? All three men raped you.
CLAIMANT 1: All three.
PRESIDING MEMBER: And then you stated you went to your niece's house
CLAIMANT 1: Yes.
PRESIDING MEMBER: Didn't go to a doctor?
CLAIMANT 1: No.
PRESIDING MEMBER: Okay. You didn't go to the police, Madam?
CLAIMANT 1: I was afraid.
PRESIDING MEMBER: What were you afraid of?
CLAIMANT 1: From the person that raped me, and I knew that the police wouldn't help me anyway.
PRESIDING MEMBER: You had a previous experience with the police?
CLAIMANT 1: No.
PRESIDING MEMBER: So how could you come to the conclusion that the police would not help you?
CLAIMANT 1: Because they have never helped any other Democrat before.
PRESIDING MEMBER: Madam, I find it, well, let me take those words back. You're raped by three men, and you go to your niece's house. I don't understand that. Can you explain that for me?
CLAIMANT 1: I went to my niece's house because I did not want to go back home and face my children, I was in, I did not want to be seen by my mother in law, father in law, we would be living a big family, I couldn't dace that.
PRESIDING MEMBER: Weren't you concerned about any kind of communicable disease?
CLAIMANT 1: (inaudible)
(Tribunal Record pp. 361-362)
________________________________________________________________________
PRESIDING MEMBER: I, your, I need you to explain to me why you would not have seen some sort of medical doctor or practitioner with respect to you being raped by three men.
CLAIMANT 1: This is very, this is very difficult for me as a woman, you know, being there, in this small town. I did not want this to, it is very difficult for my son.
PRESIDING MEMBER: Okay, the following day you drove five hours to the Greek border. Why wouldn't you see a medical doctor there, Madam - -
CLAIMANT 1: (Inaudible)
PRESIDING MEMBER: Just let me finish the question. Where you would be known, and who would have no idea why you wanted, would want to be examined?
CLAIMANT 1: I went over to my mother's and everyone else knew me too, and I went to see a doctor to give me somethings to calm me down, because I - - [in English] Librium.
PRESIDING MEMBER: Madam, you went to see a doctor for your mental state?
CLAIMANT 1: To calm me down.
PRESIDING MEMBER: And at that point you did not suggest to the doctor that you should be examined physically?
CLAIMANT 1: For the rape, no. No.
PRESIDING MEMBER: So you went to see a doctor for your mental state. Where was this doctor, Madam?
CLAIMANT 1: In the village.
PRESIDING MEMBER: What was the doctor's name?
CLAIMANT 1: Robert Hofxha (ph).
INTERPRETER: You need it spelled sir?
PRESIDING MEMBER: I'd like one, please.
INTERPRETER: R O B E R T
PRESIDING MEMBER: Yes.
INTERPRETER: H O F X A.
CLAIMANT 1: And I'm not quite sure of the last name, but I know his name was (inaudible) - -
PRESIDING MEMBER: That's fine. So the doctor gave you, the doctor gave you a prescription?
CLAIMANT 1: He asked, I said that this is a family problem that we had in Berat, and I had marks all over, like on me, and he saw, he could see that, he asked. I said I just fell and hurt myself, that we had some problems back home. And he didn't ask.
(Tribunal Record, pp. 363-365)
[7] I find that, not only are the CRDD's implausibility findings not supported by the
evidence on the record, they suffer from a fundamental lack of understanding. The Applicant was not asked if she "sought" medical attention, she was asked if she thought about seeking medical attention. On the transcript, I find it cannot be fairly concluded that the principal Applicant altered her answer to this question when she testified to being seen by a doctor while at her parent's home.
[8] It is patently obvious to me that the CRDD applied it's own experience, whatever
that might be, in assessing the principal Applicant's evidence. Instead, I find the CRDD should have judged the principal Applicant with detailed knowledge of what to expect from a rape victim generally, and, thus, specifically from her.
[9] Indeed, the Immigration and Refugee Board has taken some care to make this
point to CRDD decision makers by the promulgation of Guidelines as follows:
Immigration and Refugee Board of Canada
GUIDELINE 4
Women Refugee Claimants Fearing Gender-Related Persecution: UPDATE
Last updated 1999-12-09
...
3. Woman refugee claimants who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome30, and may require extremely sensitive handling.
30 The UNHCR Executive Committee Guidelines on the Protection of Refugee Women, [EC/SCP/67 (July 22, 1991)] discuss the symptoms of Rape Trauma Syndrome as including "persistent fear, a loss of self-confidence and self-esteem, difficulty in concentration, an attitude of self-blame, a pervasive feeling of loss of control, and memory loss of distortion."
(Applicant's Book of Authorities, p. 27)
[10] In my opinion, the principal Applicant is entitled to the sensitive and informed
hearing that the Guidelines speak to. As this did not occur with respect to the decision under review, I find that it is patently unreasonable.
ORDER
Accordingly, the CRDD's decision is set aside and the matter is referred back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
__________________________
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-770-02
STYLE OF CAUSE: ASTRIT ELEZI,
FERDANE ELEZI,
ALBANO ELEZI,
LEDIOLA ELEZI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, FEBRUARY 20, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL, J.
DATED: THURSDAY, FEBRUARY 20, 2003
APPEARANCES BY: Ms. Geraldine MacDonald
For the Applicants
Ms. Kareena R. Wilding
For the Respondent
SOLICITORS OF RECORD: Geraldine MacDonald
Robert Gertler and Associates
Suite 502 - 720 Spadina
Toronto, Ontario
M5S 2T9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030220
Docket: IMM-770-02
BETWEEN:
ASTRIT ELEZI,
FERDANE ELEZI,
ALBANO ELEZI,
LEDIOLA ELEZI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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