Date: 20030417
Docket: IMM-2790-02
Citation: 2003 FCT 454
OTTAWA, ONTARIO, THIS 17th DAY OF APRIL, 2003
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
HADIXHE NOGA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), dated May 30, 2002, wherein the applicant was found not to be a Convention Refugee within the meaning of subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The salient facts of the applicant's claim have been summarized as follows by the Board.
[2] The applicant is a 71 (now 72) year old citizen of Albania. She alleges that she belongs to an anticommunist family. After the collapse of the communist regime, all of her family have become members of the Democratic Party ("DP"). The applicant became a member in May 1993. She asserts that she participated in many meetings and conferences held by the Democratic Party's Women's Organization. She spoke about the horrors of the communist regime and as a result she became well known in the area as a strong supporter of the DP.
[3] The applicant asserts that in March 1997 she was at home with her grandson when a Molotov cocktail had been thrown into the house. Her grandson got injured and her house was burned. She then went into hiding. During that same month, the applicant and her family went to Turkey. In June 1997, the applicant's son left for Canada where he made a refugee claim upon his arrival, which was approved by the Board. Over the years the rest of her family joined the applicant's son in Canada and she was left alone in Turkey. Because she was afraid of being alone in Turkey, she returned to Albania in June 1999 and went to live with her sister in Borsh.
[4] The applicant also testified that the area surrounding the village was heavily populated by socialist empathisers, and her arrival was noticed by these people. The wife of a staunch socialist even came up to her and began to verbally attack her. In November 1999, a bomb was placed at her sister's residence. As a result, her nephew was killed and half of the house was destroyed. The applicant believes that the socialists targeted the house because of her presence. This incident made her decide to leave the country. Her brothers helped her find a false passport and on December 25, 1999 she flew from Albania to Canada. Upon her arrival she became extremely ill and was sick until February 2000. She claimed refugee status once she recovered.
[5] As mentioned above, the applicant alleged that she was a member of the DP, and as a result, was targeted by the socialist government. However, the Board decided that the applicant's "political profile, experiences, and activities, on behalf of the DP do not support [the] contention [that she was targeted by the socialist government]".
[6] First, the Board was ready to accept that an explosion, in March 1997, burned the applicant's house in Tirana but did not believe that the bomb was personally directed at the applicant. In this regard, the Board noted:
The panel surmises that the socialists intended to harm or send a message to the claimant's son, who subsequently came to Canada and was accepted as a refugee. The panel's conclusion in this regard is supported by the claimant's voluntary return to Albania in June of 1999.
[7] I find that it was open to the Board to infer that the bomb attack in 1997 was made against the applicant's son, and not herself. The question now is whether the Board's conclusions with respect to the second bomb attack in 1999 are patently unreasonable.
[8] The Board's reasoning has to be taken as a whole. It reads as follows:
With respect to the second and final incident, which resulted in the claimant's recent departure from Albania, the panel was not satisfied that the bomb, which was placed in the claimant's sister's house in November 1999, was directed at the claimant. The panel notes that the claimant is a 71-years-old lady with no significant political profile to pose a threat to the government or attract the attention of the Socialist Party members.
The documentary evidence confirms that the government may target known political activist or journalists who pose a threat to their authority. However, the claimant does not fall into either of these categories. In view of the above, the panel finds that there is insufficient objective basis for the claimant's well-founded fear of persecution because of her actual or perceived political opinion, or by reason of her membership in a particular social group, were she to return to Albania.
[9] The applicant submits that the Board made a patently unreasonable finding when it found that the second bomb attack could not have been aimed against the applicant. I respectfully disagree. The allegation that the applicant was personally targeted by the socialist government or Socialist Party members is entirely speculative. Authors of the attacks remain unknown. Their reasons to target a 71 year old lady with no significant political profile are unclear. In the within case, the Board reviewed the documentary evidence, including an Amnesty International Report submitted by the applicant. The report suggests that the government may target known political activists or journalists who pose a threat to their authority. The report describes a number of incidents including those relating to a 37 year old Democratic Party secretary; a television journalist; a 38 year old supporter who called out slogans at a demonstration; and the president of the local branch of the Democratic Party for Tropoja (exhibit C-3, at pp. 126 to 154: Amnesty International on-line, 18/05/2001, Albania, Torture and ill-treatment-an end to impunity?, Certified Record, at pp. 135-141). Thus, it was open to the Board, based on the applicant's particular profile, past experiences and activities, and on the documentary evidence on file, to conclude that she was not targeted by the socialist government or the Socialist Party members. As a consequence, it was reasonable for the Board to conclude that there was insufficient objective basis for the applicant's fear of persecution based on her actual or perceived political opinion, or by reason of her membership in a particular social group, were she to return to Albania.
[10] Applicant's counsel also submits that the Board failed to give her the benefit of the doubt. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (the "Handbook"), states that, at paragraph 196:
It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statement by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule ... Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
(my emphasis)
[11] Paragraph 204 of the Handbook also reads:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statement must be coherent and plausible, and must not run counter to generally known facts.
[12] As recently explained by Snider J. in Sedigheh et al. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 239, at paragraphs 54 to 56, the benefit of the doubt principle applies in a limited number of circumstances:
The Applicants argue that the panel erred in not giving the claimant the benefit of the doubt. The Supreme Court in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at paragraph 142, has cited with approval the following UNHCR Handbook's discussion of the benefit of the doubt principle:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The doctrine is meant to apply to cases where a claimant's testimony is consistent with the documentary evidence, but there is little extrinsic evidence to back up their story. In other words, when a claimant's story is otherwise believable, the Refugee panel must give the claimant the benefit of the doubt that their story is true. The claimant, however, must still prove their case on a balance of probabilities ®. v. Shwartz, [1988] 2 S.C.R. 443).
The Applicants do not specify in which respect the claimants should be given the benefit of the doubt. There is no evidence that the Board did not believe the claimants' story as told to them. Rather, they found that there was no objective fear of persecution. This is not a finding that would result in the application of the benefit of the doubt principle...
[13] This approach is consistent with Major J.'s comments in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, who states at paragraph 137 that "[w]here [the] evidence is not available in the documentary form, the claimant may still be able to establish that the fear was objectively well founded by providing testimony with respect to similarly situated individuals".
[14] In the case at bar, after a thorough review of the documentary evidence, the Board found that there was an insufficient objective basis for the applicant's fear of persecution. Accordingly, the benefit of the doubt principle does not apply. It is well settled that the applicant has the burden of establishing a well-founded fear of persecution, one which can be tested both subjectively and objectively. It was open to the Board, after considering the documentary evidence, to conclude that the applicant had not met the burden of proof. It is also trite law that on an application for judicial review this Court is not entitled to substitute its decision for that of the Board. In any judicial review of the factual determination of a lower tribunal such as the Board, the primary question to be asked is whether the finding was one that could reasonably have been made on the totality of the evidence before the panel. If the finding is reasonable, it must stand. Thus, in the case at bar, the Board did not make any perverse or capricious findings, and there was sufficient documentary evidence (which the Board was entitled to prefer to the oral testimony of the applicant) before it to support its conclusions. Therefore, this judicial review application must fail.
[15] Counsel agree that this case does not raise any question of general importance.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division, dated May 30, 2002, wherein the applicant was found not to be a Convention Refugee within the meaning of subsection 2(1) of the Immigration Act, be dismissed. No question of general importance will be certified.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-2790-02
STYLE OF CAUSE: Hadixhe Noga v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 2, 2003
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: April 17, 2003
APPEARANCES:
Mr. Micheal Cranefor the Applicant
Ms. Matina Karvellasfor the Respondent
SOLICITORS ON THE RECORD:
Mr. Micheal Cranefor the Applicant
Toronto, Ontario
Mr. Morris Rosenbergfor the Respondent
Deputy Attorney General of Canada
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