Date: 20011203
Docket: IMM-1346-00
Neutral Citation: 2001 FCT 1326
BETWEEN:
Nezihat, Miranda and Mergim KRAJA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
MacKay J.:
[1] This is an application for judicial review brought by the applicants pursuant to s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, against a decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board (the "Board") dated February 21, 2000, whereby it determined that the applicants are not Convention refugees.
Facts
[2] The applicants are a mother and her two minor children. They are all citizens of Albania. They claimed Convention refugee status on December 30, 1998, on the grounds that they fear persecution on the basis of religion and membership in a particular social group. The applicants fear persecution from the principal applicant's two brothers and other devout Muslims as a result of their conversion from Islam to Catholicism. The principal applicant also fears persecution because of her status as a woman without a husband, which makes her more vulnerable to mistreatment by her family and fundamental followers of Islam.
[3] In July 1997, the minor applicants began attending Catholic Church services at the invitation of a neighbour. While reading the Bible to the children, the principal applicant also began to develop an interest in Christianity and started attending services. Her family and Muslim neighbours allegedly asked her to stop, and her life was allegedly threatened by an Islamic Fundamentalist group if the activity was not terminated.
[4] The principal applicant alleges that in March 1998, when returning from a worship service, a group of masked men began shooting at the applicants. Due to the intervention of a neighbour, their lives were spared. No police assistance was sought.
[5] The principal applicant further alleges that in May 1998, her two brothers beat her as punishment for the shame she had caused her family. This happened on two consecutive days and the police intervened. The two brothers were arrested, but released without charge the following day. Similar incidents subsequently took place on two separate occasions, with police involvement resulting in the same outcome.
[6] The minor applicants were baptized on July 3, 1998, and six days later all three applicants left Albania. They remained in Germany while the principal applicant attempted to procure a false passport, and they made their way to Canada on December 30, 1998.
The Decision of the Board
[7] The Board found that the principal applicant's credibility was questionable, as she offered inadequate explanations for the inconsistencies between her oral and documentary evidence. One such inconsistency noted by the Board was that the principal applicant gave oral testimony that she had no help from any of her family for the trip to Canada, yet the notes of the immigration officer at the port of entry ("POE") disclose that the principal applicant's passport was obtained by her brother.
[8] Another inconsistency noted by the Board was that the principal claimant testified that her brothers loved her so much that they did not insist she follow Islam in the strictest sense, yet in her statement to immigration officer at the POE she alleged that she was beaten up three times by her brothers for the shame she had brought her family when she became interested in Christianity.
[9] The principal applicant claimed that her departure from Albania was a hasty response to persecution. The Board disbelieved this claim, noting that the applicants's exodus appeared to be strategically planned and calculated. The Board noted that approximately one month prior to her departure from Albania, the principal applicant applied for an external passport and was refused. In the week prior to her departure, she obtained a letter from police to substantiate her complaints against her brothers. It was received two days prior to their departure, and was translated into English while still in Albania. Further, she also acquired a letter from the District Chairman confirming that her brothers beat her for converting to the Christian faith.
[10] Finally, the Board found that the applicants enjoyed religious freedom in Albania, since Islam does not prohibit a person from converting to another religion, and neither the State nor its officials interfered with the applicants' right to adhere to their own religious beliefs. Relying on the decision of the Federal Court of Appeal in Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605, the Board concluded that the police protection provided to the applicants, though not perfect, was timely and adequate.
[11] As a result of these conclusions, the Board found that the principal applicant was not a Convention refugee. Relying on Klinko v. Canada (Minister of Citizenship and Immigration), (1998) 148 F.T.R. 69, the Board concluded that since the principal applicant's claim was not established, the minor applicants' claims, dependant upon that of their mother, were also not established.
Submissions of the Applicants
[12] The applicants submit that the Board erred in law in assessing the principal applicant's credibility by misinterpreting the documentary evidence before it. It is asserted that the discrepancies noted by the Board between the oral testimony of the principal applicant and the POE notes of the examining immigration officer, lie in the translation. In relying on the POE notes, the Board found that an interpreter had translated the documents to the principal applicant and that she had signed a declaration stating she was "fully cognisant" of their contents. It is the position of the applicants that no such declaration is attached to the POE notes. In fact, the POE notes indicate that only one interpreter was available by phone, and no signature appears in the documents which attests to the accuracy of the translation. It is urged by the applicants that such a declaration is attached to the form dated January 18,1999, entitled "Information on Admissibility to Canada and Claim to be a Convention Refugee." The applicants assert the Board mistook this declaration for one related to the POE notes, thereby misinterpreting the evidence and misapplying the significance of the declaration.
[13] The principal applicant submits that there is no inconsistency between her testimony that her brothers allowed her to deviate from Islamic norms, and her allegations, recorded in the POE notes, that her brothers beat her three times because of her interest in Christianity. The principal applicant submits that her relationship with her brothers changed for the worse when she appeared to be adhering to another religion.
[14] The principal applicant submits that, following her encounter with the masked gunmen in March 1998, it was reasonable for her to apply for a passport as a precautionary measure in May 1998. Although she took this precautionary measure, she submits that she did not form a final intention, plan, or decision to leave the country at that time, and therefore her application for a passport is not inconsistent with her hasty departure.
[15] The applicants further submit that the Board erred by taking into account irrelevant considerations. This submission is in relation to the Board's comments that religious persecution is not a sustainable ground as the Albanian state is tolerant of all religious practices and has done nothing to prevent the applicants from worshipping as Catholics. It is submitted that this is an irrelevant consideration and provides an objective analysis rather than consideration of whether the applicants suffered a subjective fear of persecution.
Submissions of the Respondent
[16] The respondent asserts that the Board found the evidence presented in support of the claim for Convention refugee status to be inconsistent and not credible. It is urged, based on Hilo v. M.E.I. (1991), 15 Imm. L.R. (2d) 199, 130 N.R. 236 (F.C.A.), that negative credibility findings are proper in a determination of this sort if the tribunal provides reasons in clear and unmistakable terms. In the submissions of the respondent, the Board met this threshold.
[17] The respondent submits that the Board's error with respect to the source of the interpreter's declaration is irrelevant, as it does not change the fact that the principal applicant presented inconsistent evidence. The respondent submits that there is nothing in the evidence to indicate the immigration officer wrongly recorded the principal applicant's statements at the POE. Notwithstanding the less than ideal arrangements for services of an interpreter, it is the position of the respondent that the applicants have failed to demonstrate inaccuracies in the immigration officer's notes or how the Board's reliance on them could give rise to a reviewable error.
[18] The respondent concedes the Board erred when it discussed the religious tolerance of the Albanian state structure in rendering its credibility finding against the principal applicant. However, it is urged that the Board was aware that the principal applicant's fear stemmed from the alleged mistreatment at the hands of her brothers and it was from this perspective that the situation was analysed. Thus, the respondent submits the assertion that the Board made only an analysis of objective fear is groundless.
Analysis
[19] The respondent admits that, in considering the evidence before it, the Board made two errors. First, the Board mistakenly identified the POE notes as having been completed with a certificate of translation when that was not the case, and second, the Board's comments about the religious tolerance of the Albanian state were irrelevant to the issue of whether the principal applicant suffered a subjective fear of persecution. In my view, this Court should not intervene unless either of these errors were central to the Board's finding that the principal applicant lacked credibility. I will consider each of these errors in turn.
[20] The first error alleged by the applicants, and admitted by the respondent, is that the Board mistakenly identified the POE notes as having been completed with a certificate of translation when that was not the case. The POE notes indicate that the principal applicant's passport was obtained by her brother, a statement which the principal applicant denies. In cross-examination on this issue, the principal applicant states that upon her arrival in Canada she was interviewed, over the telephone, by an immigration officer. The interview was conducted in Albanian and the principal applicant states that she understood the questions posed to her. However, she denies that she was asked who obtained the passport for her; instead, she states that she was simply asked whether or not the passport was false. The Board was not favourably impressed by her testimony on this point. In its decision, the Board commented:
She [the principal applicant] gave oral testimony that she had no help from any of her family for her trip to Canada. However in Exhibit M-1 the Senior Immigration Officer writes in his notes that the "passport was obtained by the brother - doesn't know how much money it costs or where it came from". An interpreter had translated these documents to the claimant at the time of the interview and the claimant had signed a declaration stating that she is fully cognisant of the contents of the documents. The claimant was unable to satisfactorily explain the contradiction between her testimony in support of this allegation and the relevant notes in Exhibit M-1.
[21] The record before me clearly establishes that the POE notes, which state that the principal applicant's passport was obtained by her brother, were not signed by the principal applicant. Thus, it was an error for the Board to write that "the claimant had signed a declaration stating that she is fully cognisant of the contents of the documents."
[22] However, this error was not central to the Board's finding that the principal applicant lacked credibility. The Board's decision was based on several inconsistencies between the applicant's testimony and the documentary evidence. Even if the Board had accepted the principal applicant's submission that the immigration officer never asked her who obtained the passport for her, and therefore the notes of the immigration officer were in error, the Board's conclusion about her credibility did not depend entirely or significantly on that error of fact. There were other inconsistencies in the principal applicant's story. For example, it was open to the Board to find inconsistency between the principal applicant's testimony that her brothers allowed her to deviate from Islamic norms, and her allegations, recorded in the POE notes, that her brothers beat her three times because of her interest in Christianity. Similarly, it was open to the Board to find inconsistency between the principal applicant's testimony that she departed hastily from Albania, and her testimony that she applied for an external passport approximately one month before departing. As the Board correctly noted in its decision, the existence of contradictions or discrepancies in the evidence of a claimant or witness is a well-accepted basis for findings of lack of credibility.
[23] The second error alleged by the applicants, and admitted by the respondent, is that the Board commented inappropriately on the religious tolerance of the Albanian state as a factor in assessing whether the principal applicant suffered a subjective fear of persecution. In my view, this error was not central to the Board's decision, because the Board did not base its decision on the lack of an objective fear on her part. Rather, the Board's decision was based on a determination that the principal applicant's subjective fear of persecution at the hands of her brothers was not established because her evidence about the claimed fear was not credible. That conclusion was open to the Board on the evidence as presented.
[24] The application for judicial review is dismissed. An Order goes so providing.
(signed) W. Andrew MacKay
_________________________________
JUDGE
OTTAWA, Ontario
December 3, 2001.
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