Date: 20040815
Docket: IMM-6480-03
Citation: 2004 FC 1081
Toronto, Ontario, August 5th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
ALKET GJOTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Alket Gjota, a citizen of Albania, seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated July 30, 2003 that determined that he was not a Convention refugee or a person in need of protection. The issues are first, whether the Board based its credibility findings on a misapprehension of the evidence and secondly, whether it erred by ignoring relevant evidence that went to the objective basis for the applicant's claim. For the reasons set out below, I have concluded that the application should be allowed and the matter returned to the Board for reconsideration.
Did the Board base its credibility findings on a misapprehension of the evidence?
[2] After reviewing the evidence, and the applicant's and respondent's arguments, I am persuaded by the applicant that the Board's reasons indicate that it misunderstood some key findings of fact that were central to its credibility and implausibility findings, and the ultimate dismissal of his refugee claim. First, the Board believed, erroneously, that the applicant was with his uncle when an assassination attempt was made in June 1997. The details of the event described in his PIF, that the Board construed as relating to that attempt, in fact relate to a different incident where the applicant and a friend were stopped in their car, beaten and threatened with mock executions.
[3] This error was material because the Board appears to have found it highly unlikely that the applicant and his uncle would both escape an assassination attempt that involved such close contact from the perpetrators. The Board collapsed two incidents into one and then drew a negative plausibility finding against the applicant based on its misinterpretation of this issue.
[4] The applicant never claimed to be with his uncle when someone attempted to kill him. The PIF conveys this, and I agree with the applicant, that if the Board required clarification, it should have questioned the applicant about this at the hearing. From my review of the transcript, it did not do this and in fact this incident was not one that the Refugee Protection Officer ("RPO") or the Board questioned the applicant on at all.
[5] Secondly, the Board erred in its reasons in stating that the applicant was in a car when he was shot at on October 5, 2000. Neither his PIF nor his testimony indicate this to be the case, and instead these sources show that Mr. Gjota was clear in conveying that he was walking along a narrow road, bordered by short walls. The Board's finding of an inconsistency with the applicant testifying that he jumped over a wall to avoid the shooting and then only briefly hid in someone's yard prior to returning home, is not in any real way inconsistent with his PIF where he alleges that he "managed to hide running into someone's yard." His testimony clarifies this alleged inconsistency at page 180 of the tribunal record. He did mention that he hid in someone's yard for only a few moments, prior to quietly going home to get advice from his family on what to do. As held in Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.), the Board must be diligent to not be overzealous to find instances of contradiction in an applicant's testimony and should not be overly vigilant in undertaking a microscopic examination of the evidence of claimants who testify through an interpreter. In this case, I am satisfied that the Board was too microscopic in its examination of the applicant's testimony in this regard.
[6] Third, the inconsistency of the month in which he was arrested and beaten by the police is another problem noted by the Board. It is true that the applicant stated in his oral testimony that this incident occurred on July 11th or 14th of 1999, whereas in his PIF he claimed that it occurred in June 1999. When confronted with the inconsistency, the applicant admitted that he made a mistake in his oral testimony. The problem does remain that the applicant described in his PIF that the police "raided the meeting", however in his oral testimony he stated that he and others were attacked by police on their way home from this meeting. The Board was of course entitled to reject the applicant's explanation for this discrepancy. Further, the negative inference drawn by the Board from the applicant's testimony about his notice to appear was not made perversely or without regard to the evidence. However, these inconsistencies cannot in my view sustain the Board's ultimate rejection of the refugee claim, in light of the other errors I have noted.
Did the Board err by ignoring relevant evidence that went to the objective basis for the applicant's claim?
[7] The Board made a finding related to the documentary evidence, determining that it did not support the applicant's allegations. The Board cited, as an example, documentary evidence pertaining to the October 1, 2000 elections. The applicant argues that there was other documentary evidence supportive of his allegations, that the Board failed to mention. The respondent maintains that this finding on the documentary evidence was not even necessary given the Board's negative credibility findings. The respondent submits further that the Board preferred the objective documentary evidence to that of the applicant's non-credible evidence.
[8] I am satisfied that the Board's brief finding in relation to the documentary evidence cannot stand, in light of the contradictory evidence highlighted by the applicant on this judicial review. Due to the Board's failure to deal with such evidence in only referring to a report that supported its own conclusion, there is a reasonable apprehension that the Board failed to have regard to the totality of evidence.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed, the Board's decision is quashed and a differently constituted Board shall reconsider the applicant's claim to be a Convention refugee and a person in need of protection in accordance with these reasons. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6480-03
STYLE OF CAUSE: ALKET GJOTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 5, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: AUGUST 5, 2004
APPEARANCES BY:
Hart Kaminker For the Applicant
Marina Stefanovich For the Respondent
SOLICITORS OF RECORD:
Kranc and Associates
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040805
Docket: IMM-5139-03
BETWEEN:
YI JING SU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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