Date: 19990625
Docket: IMM-5935-98
BETWEEN:
ILIR NALLBANI and MAJLINDA NALLBANI
and XHENI, KRISTI and MEGI NALLBANI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicants seek judicial review of, and an order setting aside, a decision of the Immigration and Refugee Board, Refugee Division, rendered orally on August 12, 1998 and confirmed by written reasons dated October 30, 1998, by which it was determined that the applicants are not Convention refugees, within the meaning of that term under s-s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended ("the Act").
Background
[2] The male adult applicant is from Albania. He is married and has three children and he and his family arrived in Canada in December 1997. Thereafter they claimed Convention refugee status, with the claims of his family dependant upon his. He claimed to fear persecution in Albania because of his political opinions.
[3] In Albania the applicant claims he was outspoken in his political opinions and very active in the politics of the country. He was a member of the Democratic Party from 1990 until 1992. Then he left that party and he became a member of the Democratic Alliance. This is a party which positioned itself to criticize both the Democratic Party and the Communist Party in support of a democratic future for Albania.
[4] Because of his political involvement and various political speeches and activities, the applicant was arrested and detained on five occasions between 1990 and 1996. Each time, he was held for some time during which he was beaten, tortured, deprived of food and drink, and his life was threatened.
[5] On June 11, 1996, the applicant received a summons from the Tirana Courthouse to appear in court on July 1, 1996. This summons related to charges laid by the Democratic Party against the applicant for an interview he gave to the BBC (British Broadcasting Corporation) on June 7, 1996. In that interview, he denounced the vote manipulation and election corruption engaged in by the Democratic Party during the May 26, 1996 election. He also accused the Democratic Party of brutal violence against the people and in particular against opposition party members. As a result of having spent considerable time in prison and having suffered significant abuse, the applicant feared for his life if he were to respond to the summons. He went into hiding at his wife"s cousin"s home on the outskirts of Tirana and did not appear in Court. He remained in hiding for over a year while he made arrangements to leave Albania permanently with his family. The family left at the end of November 1997, travelling on false passports of Slovenia to Italy and Belgium en route to Canada.
[6] After arriving in Toronto in December of 1997, the family remained there for approximately two weeks before relocating to Halifax. The claim to refugee status was considered in Nova Scotia where legal aid is not generally available for immigration matters, and the applicants did not receive legal advice or assistance prior to or when appearing before the panel of the Refugee Division in August 1998 when their claims were considered and denied.
[7] The decision of the panel reads in part as follows:
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Quite frankly, the Panel would see you having a case if the Democratic Party were still in power, but it is not and has not been since June of 1997. The Socialist Party is now in power. The Democratic Party is no longer in power. In other words, to use our terminology, a change of circumstances has taken place in your country. The situation under which you claim persecution is no longer the situation and the agents of persecution who persecuted you are no longer in power. |
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So there is no evidence before us that the present government is repressing or persecuting the Democratic Party, the present members or former members. We note that in the new parliament the Democratic Party is represented. |
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You have shown us today a summons which we identified as Exhibit C7 and which you told us your father sent to you. The charge in that summons refers to -- and I quote -- that you are a participant and troublemaker -- "as a participant and troublemaker on political troubles caused by the Democratic Party." We don"t find this summons to be plausible for two reasons. We find that the language is so vague as to be meaningless. Also, and perhaps more importantly, we don"t find it plausible given what the documentary evidence says about the government -- the present government"s relations with the Democratic Party - that they would be interested in pursuing you, sir, in May of 1998, given that you left the Democratic Party in 1992. |
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I must say also in passing -- but we make no finding on this issue, but I want to comment on it -- that it's not plausible that you were able to save $10,000 U.S. by working as a labourer since 1990 with your wife as a furniture painter. We don't find that plausible because $10,000 U.S. is a lot of money, especially in a country like Albania. |
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At this point, I am going to ask my colleague if he has anything to add? |
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Yes, I might add one thing. You had written in your narrative that the new government has come up with a plan to kill all of its opponents and to create a one-party state. I asked you how did you find out about this plan and what is this plan, and I am afraid that you did not provide me an answer. The reason I had asked you this question is that this statement that the new government has a plan to kill of its opponents goes totally against all of the documentation we have on your country, and my colleague and Mr.Audet has referred to some of them, especially R1, Tab7. |
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Issues
[8] By the application for judicial review the applicants raise the following issues, which I propose to deal with in turn:
| i) that the panel erred in its assessment of credibility, |
| ii) that the panel erred in its consideration of the evidence, in particular that relating to the applicant, and in its assessment of a change of circumstances in Albania, and |
| iii) that inadequate translation services had an adverse effect upon the proceedings of the panel. |
[9] The applicant's difficulties were exacerbated, it is urged, because without counsel, which he could not afford, and with no provision for legal aid at that stage, the adult male applicant had no legal advice before or at the hearing of his refugee claim.
The matter of credibility
[10] The issue of credibility is raised by the panel's decision in regard to its finding of implausibility of the 1988 summons addressed to the male adult applicant and produced as evidence by him, by the reference to the panel's sense of implausibility about the ability of the applicant to save $10,000 U.S., and about the panel's unwillingness to accept the applicant's claim that the current government planned to kill all of its opponents. Though asked to produce evidence to support the last of these claims or to explain the basis of his knowledge of it, the applicant did not do so. As for the applicant's inability to save $10,000 U.S., that is said not to be a finding of fact and it is not, in my view, a factor on which the decision is based. While the panel does cast doubt on the plausibility of the 1998 summons in part because it is said the language used in it is "so vague as to be meaningless", the more important reason for the panel's assessment was that the summons seemed implausible in light of the documentary evidence about the attitude of the current government, elected in 1997, towards the Democratic Party or its former members.
[11] It is urged that the panel failed to specify reasons for its finding that the applicant's evidence lacked credibility. Yet in the case of the three respects reviewed above, the panel's reasons are spelled out. Those reasons are not really contested and in the circumstances they seem warranted. The panel's assessment thus supports its principal conclusion that, with the change of government in 1997, the evidence proffered by the applicant to support his claim to fear prosecution prospectively, did not establish that claim in an objective sense.
[12] I am not persuaded that the panel erred in its assessment of the plausibility of certain evidence adduced by the applicant. That affected its assessment of the credibility of the applicants' claims in the sense that the panel was not persuaded there was a basis established for objectively finding a likelihood of persecution of the male adult applicant for political reasons if he were to return to Albania.
The panel's consideration of the evidence
[13] The fear of persecution of the applicant is said to arise from the first summons which was issued against him in 1996, on charges laid by the Democratic Party, which was in power at the time. The panel found that since the Democratic Party was no longer in power after 1997, the agents of his possible persecution are no longer in a position to persecute the applicant.
[14] The panel did not find the later summons, in 1998, to be plausible since the applicant left the Democratic Party in 1992 and since the documentary evidence about the new government did not support pursuit by the Socialist Party, now in power, against former members of the Democratic Party. The panel further found that none of the documentary evidence supports the allegations of the applicants regarding a plan by the new government to kill all of its opponents and to create a one-party state.
[15] A change of circumstances is a relevant factor to be evaluated by the panel in determining whether the applicant qualifies as a Convention refugee. The panel considered the documentary and testimonial evidence before it and concluded that the applicants could safely return to Albania without risking persecution. The fear of persecution of the applicant, arising initially from the 1996 summons, in view of the change of government, and the policy of the new government toward opponents, as supported by documentary evidence, was found not to have an objective basis. There was no evidence, other than the applicant's claim, to support his fear of retaliation from the present government for his former membership with other parties.
[16] That conclusion of the panel is not unreasonable on the basis of the evidence presented to it. Even if the documentary evidence did not demonstrate a unanimous view of the change in circumstances, it was open to the panel on the evidence that was before it to conclude as it did. I am not persuaded that the panel had to expressly find the change of circumstances was effective and lasting, rather it was sufficient for it to find, as it did, that the applicant's claim was not established prospectively in light of the change in circumstances.
[17] The panel ultimately based its determination on the change of circumstances which occurred in Albania. It rejected evidence as implausible which the applicant contended demonstrated a risk of persecution despite the change of government. In my opinion the panel's assessment of the evidence was open to it. There is no basis for intervention by the Court in relation to the consideration of the evidence by the panel.
[18] In argument it is urged for the applicant that the panel did not consider whether the applicant could qualify under the exception provided by s-s. 2(3) of the Immigration Act which states:
| (3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution. |
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[19] In my opinion, the evidence before the panel would not support a conclusion that the applicant has suffered such appalling persecution in Albania that his experience would be a compelling reason not to return him to that, his home country, particularly where the panel has assessed, on evidence before it, that there has been a change of circumstances which negates any objective basis for the applicant's fear.
The adequacy of translation services
[20] The applicant"s concern with the translation services at the hearing, which he says were inadequate, is disturbing. Yet, reading of the transcript reveals that there is no evidence of apparent mistranslation, although there is evidence of some awkward English syntax. The transcript does not support a conclusion that the interpretation was so inadequate as to mislead the panel, or to cause it to err in its conclusions. The applicant now indicates a concern at the time of the hearing with the quality of translation services, but he gave no indication of that concern to the panel at the time. In the absence of any concern then expressed, and with no indication from the transcript that the panel was misled, or that the applicant's testimony was apparently inadequately treated by the interpreter, the Court cannot intervene.
Conclusion
[21] For the reasons here set out, the application for judicial review is dismissed by separate Order.
W. Andrew MacKay
JUDGE
OTTAWA, Ontario
June 25, 1999.
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