Date: 20001211
Docket: IMM-4059-99
BETWEEN:
NDRICIM PULAKU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Ndricim Pulaku, the applicant in this proceeding, is a 42 year old citizen of Albania who claimed status as a Convention refugee on the basis of his political opinion. He alleged that he had a well-founded fear of persecution at the hands of the Socialist government of Albania and its supporters, the "black forces".
[2] Mr. Pulaku brings this application for judicial review from a decision, dated July 28, 1999, of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which determined that Mr. Pulaku was not a Convention refugee.
THE FACTS
[3] Mr. Pulaku advised that he was imprisoned between 1977 and 1982 by the former Communist regime in Albania for his political beliefs. After the Democratic Party gained power, Mr. Pulaku stated that the situation improved for his country and for him. However, he said, after the 1997 elections which brought the Socialist Party to power, he was targeted by the new ruling party and its supporters. Mr. Pulaku claimed that while he was not a member of the Democratic Party, he "was a democrat at heart", attended the party's meetings, and spoke out against the Socialist Party to people he came into contact with during the period from May to October 1997.
[4] Mr. Pulaku stated that he was attacked by members of the Albanian secret police on two occasions and was warned not to work for the Democratic Party. Mr. Pulaku said that after the first incident, in September 1997, he moved with his family to Italy. Thereafter, according to Mr. Pulaku, he was unable to support his family in Italy so he returned with them to Albania in March of 1998. He said it was at this time the second attack took place. He reported that incident to the police who, Mr. Pulaku said, declined to get involved.
[5] Mr. Pulaku left Albania on April 20, 1998 and arrived in Canada three days later. He made a claim for refugee status on April 23, 1998.
[6] The CRDD, in rejecting Mr. Pulaku's claim, found that his fear of persecution was not credible, nor objectively based. It also found that his actions did not show a subjective fear of persecution. Therefore the CRDD concluded that "there is no more than a mere possibility you would suffer persecution in Albania because of your actual or perceived political opinion".
THE ISSUES
[7] On Mr. Pulaku's behalf it was asserted that the CRDD committed a number of errors. Chief among those errors pursued before me in oral argument were the following:
| (i) The CRDD was alleged to have erred in law by applying a higher standard of proof than permissible when it stated that Mr. Pulaku failed to "show" that the situation he fled was not the social and economic breakdown in Albania; |
| (ii) The CRDD failed to give reasons, in clear and unmistakable terms, in support of its findings of lack of credibility and the CRDD erred in drawing its plausibility findings "out of a hat"; and |
| (iii) The CRDD erred in finding that Mr. Pulaku's claim was not corroborated by the documentary evidence. In particular, Mr. Pulaku pointed to an article before the CRDD which described him as a well-known activist for the Democratic Party who enjoyed a high profile, and also confirmed his allegation that he was attacked. |
ANALYSIS
[8] As to Mr. Pulaku's submission that the CRDD erred by applying a higher standard of proof in respect of his claim to refugee status, I have reviewed carefully the CRDD's reasons and am satisfied that the CRDD applied the proper test when assessing Mr. Pulaku's evidence. Those reasons reflect that the CRDD correctly and expressly inquired whether there was "more than a mere possibility [the applicant] would suffer persecution" in Albania by reason of his actual or perceived political opinion. The reference to Mr. Pulaku having failed to adduce sufficient evidence to "show" the situation he fled was political persecution, I find, is in the context of statement reflective of the onus and not the standard of proof.
[9] I further find on a careful review of the panel's reasons that the panel's conclusion that the applicant's claim was not credible, and was not corroborated by the documentary evidence, was supported by six specific instances which the CRDD set out where it found Mr. Pulaku's evidence to lack credibility or to be implausible. Despite the cogent and methodical submission of his counsel, I do not find that the CRDD's conclusion that Mr. Pulaku's claim was not credible was patently unreasonable.
[10] As to Mr. Pulaku's submission that the CRDD ignored relevant documentary evidence, I find that the view which the CRDD took of the documentary evidence was reasonably open to it, particularly in view of Mr. Pulaku's evidence that he was not a member of the Democratic Party. The bulk of the documentary evidence dealt with abuses directed against party members.
[11] Mr. Pulaku's strongest submission was with respect to the failure of the CRDD to expressly acknowledge and deal with a newspaper article placed into evidence which described Mr. Pulaku as a Democratic Party activist.
[12] It is trite law that the fact that written reasons do not mention all of the evidence introduced before a tribunal does not of itself constitute a reviewable error of law. However, Mr. Pulaku placed reliance upon decisions such as Hassan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1359, IMM-5440-98 (September 7, 1999) (T.D.) where Evans, J., as he then was, stated that while a tribunal is not required to refer explicitly to, or to analyze, every item before it in evidence that tends to negate a finding of fact that the tribunal has made, much depends upon the relevance and cogency of the evidence, and upon its importance to the ultimate decision on the fact to which the evidence relates.
[13] The cogency of the newspaper article in question is seriously undermined, I find, by the fact that it is not congruent with Mr. Pulaku's own evidence as to the extent of his involvement in politics. He admitted he was not a member of the Democratic Party and clearly described his activities as a supporter of its ideals. Those activities as described by Mr. Pulaku himself fell far short of the article's description of him as a "well-known activist" of the Democratic Party.
[14] The provenance of the newspaper and the article does not appear to have been in evidence. The article was written after Mr. Pulaku left the country because it refers to his departure from Albania.
[15] Further, there was evidence before the CRDD in a United States Department of State Report, "Albania Country Report on Human Rights Practices for 1998", that "[p]olitical parties, trade unions, and various societies and groups publish their own newspapers or magazines" and that:
| The media are active and unrestrained but have developed little sense of journalistic responsibility or professional integrity. Sensationalism is the norm in the newspapers, and the political party-oriented newspapers in particular print gossip, unsubstantiated accusations, and outright fabrications. |
[16] In light of all these factors, I cannot conclude that this article had such cogency that it was a fatal error for the CRDD not to have expressly addressed this evidence in its reasons.
[17] Further, any relevance the newspaper article had was with respect to the existence of the well-foundedness of Mr. Pulaku's claim, tested objectively. It follows that any failure to expressly consider the article did not taint the CRDD's conclusion that Mr. Pulaku's own actions did not show a subjective fear of persecution. That conclusion on its own was fatal to Mr. Pulaku's claim and I have found that conclusion was reasonably open to the CRDD on the evidence.
[18] It follows that the application for judicial review should be dismissed.
[19] Mr. Pulaku's counsel submitted that the following question should be certified:
| Does the Refugee Division err in law if it requires a refugee claimant to adduce "sufficient evidence" to "show" that the claimant is not an economic refugee as well as that the claimant is Convention refugee? |
[20] The Minister opposed certification of the question on the ground that the question is not determinative of the case at bar and is so based on the facts of this case that it is not a question of general importance.
[21] I accept the submissions of the Minister. No question is certified.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
December 11, 2000
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