Date: 20031009
Docket: IMM-5647-02
Citation: 2003 FC 1176
Toronto, Ontario, October 9th, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MYZAFER CEKA
NEVIN CEKA
LUMNIJE CEKA
ELXHIUD CEKA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated October 8, 2002, wherein the Board determined the applicants are not Convention refugees or persons in need of protection.
[2] On the issue of credibility, the Board relied heavily, in three separate parts of its decision, on a perverse finding of fact, namely that the principal applicant omitted from his PIF "all mention of the fact that the DP (Democratic Party) was the party in power for a period of five years ..." In fact, the PIF states clearly that "The Democratic Party won the election in Albania in March 1992 and took power." Accordingly, this finding of fact is perverse, and the Court concludes that it is material.
[3] Also on the issue of credibility, the Board ignores the clear, forthright and trustworthy evidence of the retired US Ambassador to Albania, Ambassador William E. Ryerson, which confirms that the applicant was victimized by the Socialist Party in 1991, and for that reason the Ambassador assisted the applicant and his family flee Albania for the United States.
[4] The US Ambassador confirms in a sworn statement that the applicants experienced persecution because of their political opposition to the Socialist Party (the oppressive and ruthless Albanian Communist Party under its new name). The Board dismissed this evidence because the Ambassador "was not in Albania when the incident occurred." This finding is patently unreasonable since the Ambassador arrived two weeks after the political killings, and he followed the events closely thereafter, so much so that he visited the applicant because the applicant was present at the killings, and because his nephew was one of the people killed.
[5] On the issue of state protection and whether the applicant would be targeted if returned to Albania, the Board disregards the evidence from US Ambassador that the applicant would likely be targeted with "retaliatory action if he were to return to Albania." The Ambassador invites any official dealing with Mr. Ceka's refugee application to contact him by telephone or mail to corroborate the facts. The fact that the Board disregarded this evidence is patently unreasonable. Seldom does the Board have such clear, direct, trustworthy evidence about a particular applicant from an Ambassador.
[6] For these reasons, the application will be granted and referred back to a new panel of the Board for a new hearing to determine, in a clear and correct manner, the credibility of the applicant, and whether the principal applicant would likely be persecuted if returned to Albania at this time.
[7] At the new hearing, the applicant must satisfy the Board about the authenticity of certain documents, explain the suspicious omission in the PIF and in his evidence about his house being firebombed in October 2000, and explain the US Refugee Board decision.
[8] Neither counsel proposed a question for certification. The Court agrees that there is no question to be certified.
ORDER
THIS COURT ORDERS THAT:
This application is allowed, and the matter referred back to the Board for a new hearing by a different panel in accordance with these reasons.
"Michael A. Kelen"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5647-02
STYLE OF CAUSE: MYZAFER CEKA
NEVIN CEKA
LUMNIJE CEKA
ELXHIUD CEKA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 8, 2003
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: OCTOBER 9, 2003
APPEARANCES:
Mr. Michael Korman
For the Applicants
Ms. Kareena R. Wilding
For the Respondent
SOLICITORS OF RECORD: Otis & Korman
Toronto, Ontario
For the Applicants
Department of Justice
Toronto, Ontario
For the Respondent
FEDERAL COURT
Date: 20031009
Docket: IMM-5647-02
BETWEEN:
MYZAFER CEKA
NEVIN CEKA
LUMNIJE CEKA
ELXHIUD CEKA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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